October 26, 2016

Failure to Mitigate Results in Reduced Damages for Wrongfully Dismissed Employees

The BC Supreme Court held that where a plaintiff makes no or minimal efforts to mitigate after being wrongfully dismissed, the employer may be relieved of the obligation to prove that reasonable efforts may have yielded employment. In Logan v. Numbers Cabaret Ltd. (c.o.b. Hamburger Mary’s), 2016 BCSC 1473, the Court reduced the award of damages significantly, by more than 50%, finding on the evidence that the plaintiffs did “nothing other than take a recent and cursory look for job opportunities.”

The two plaintiffs in this case worked for Hamburger Mary’s restaurant for 18 years. In March 2015, the restaurant was temporarily closed for renovations and the plaintiffs were laid off. They were given an expected recall date of June 16, 2015. The renovations did not complete as planned, and it became apparent to the plaintiffs over the summer that the renovations were unduly delayed. The judge found that it would have been clear to the plaintiffs by the end of summer 2015 that there was no prospect that the restaurant would re-open anytime soon. The employer did not recall the plaintiffs to work and in October 2016, the plaintiffs sued for wrongful dismissal.

As of the date of the trial, the plaintiffs had not applied for any jobs. The employer argued that damages should be reduced because of the plaintiffs’ failure to mitigate. The plaintiffs argued that to prove a failure to mitigate, the onus rested on the employer to show that had the plaintiffs been diligent in looking for work, they would have found suitable alternative employment. The Court disagreed, finding that the plaintiffs’ efforts to find new employment were so minimal that they cannot be said to have discharged their duty to mitigate.

In reaching its decision, the Court also took into account evidence presented by the employer that several jobs for restaurant positions were being advertised in local newspapers. While the Court found that 14 months would have been an appropriate notice period for the plaintiffs, it reduced the notice period to just under seven months as a result of the plaintiffs’ failure to mitigate.

This case suggests that where a court finds that an employee has made no or minimal effort to mitigate damages arising from a constructive dismissal, the court may find that an employer does not have to prove that reasonable efforts would have yielded employment. While in this case, the employer did produce newspaper advertisements showing several positions available, the court’s decision suggests it may have reduced the plaintiffs’ damages on account of a failure to mitigate even in the absence of such evidence.


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