What is Mitigation?

If you have been terminated, you have an obligation to “mitigate” your damages. What does this mean?

April 1, 2019


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Mitigation

If an employee chooses to file a claim for wrongful or constructive dismissal, the court will always examine the efforts made by the former employee to mitigate (lessen) damages following the dismissal. Mitigation involves taking steps that any reasonable person in a similar situation would take to find comparable employment and to accept that employment if it becomes available.

Consequences of Failing to Mitigate

If an employee fails to fulfill the duty to mitigate, either by not reasonably searching for new employment or by refusing a comparable employment opportunity, this could negatively affect the amount of notice awarded from the claim. The court may reduce the amount of damages awarded or even decide not to award any damages as of the date on which the employee failed to satisfy this duty.

How Far Must Mitigation Efforts Go?

A dismissed employee has the duty to search for reasonably comparable employment and to accept that employment if it becomes available. However, if an employment opportunity arises which is substantially different from his or her former role, an employee is not under any obligation to accept it.

If you fail to look for a new job after your termination, or if you don’t apply to enough positions, your overall severance package could be reduced. In the case of Red Deer College v. Michaels (1975), 57 D.L.R. (3d) 386, the Court stated that it is important to apply frequently to avoid any allegations that you did not attempt to mitigate.

How Do I Prove That I’ve Been Searching for Jobs?

Keep a journal of your job search efforts. In this journal, you will record all of your job search activities. If you even think about job searching, it should be in there.

How Do I Prove That I Have Applied for Jobs?

Keep everything. You need to be able to prove that you applied for the job.

Especially with on-line applications, remember to keep (for example):

  • Copies of job postings
  • Applications that you’ve sent
  • Emails
  • Automated confirmation receipts

Ertl Lawyers – Ontario Employment Lawyers

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