Not a Failure to Mitigate when New Job is Substantially Different: Toronto Employment Lawyer
If an employee is given the option of getting a new job or to be terminated, it is not a failure to mitigate to ask to be terminated, so long as the job is suitably different
Generally, employees have a duty to mitigate their damages when they have been terminated from their employment. This means that the employee must take all reasonable steps to find comparable alternative employment, meaning that they are not expected to take any offer that comes their way.
Peticca v. Oracle Canada ULC, 2015 CarswellOnt 5450,  OJ No. 1985
In the Peticca case, the Plaintiff was terminated because the Defendant was restructuring its Canadian operations and was moving jobs to the United States. At the time of termination, the Plaintiff was a General Sales Director, which was a mid-management position.
Approximately three weeks prior to the Plaintiff’s termination, she was told that she would either be given an alternative job offer or she would be terminated and given a severance package. The Defendant made an offer of an alternative position which required the managing of three teams, two of which were in Reston, Virginia, and reporting to a Vice-President in Boston. It was not contested that the jobs duties and scope of the job were very similar to her current position.
However, the Plaintiff stated that this alternative position would require her to go to Virginia two weeks per month. She argued that she had child care responsibilities and that her husband travels for his job, therefore the change in job conditions were very significant for her. The Plaintiff rejected the Defendant’s offer based on the factors that were put forward by the Defendant.
One of the main legal issues in this case was whether the Plaintiff failed to mitigate by not taking the alternative position that was offered to her.
The Legal Test
The case references Evans v. Teamsters, Local 31, 2008 SCC 20, where the Supreme Court of Canada adopted the principle found in Mifsud v. MacMillan Bathurst Inc. (1989), 70 OR (2d) 701 (ONCA). The principle that employees are expected to take an alternative position when the salary is the same, working conditions are not substantially different and it is not demeaning. The test is a multi-factored, objective and contextual analysis. [Emphasis Added].
In her current position the Plaintiff travelled, at most, two to four times per year. After considering the facts, Justice Myers found that travelling two weeks per month, even for a few months, hundreds of kilometres into the United States is not remotely the same working conditions. Therefore, put in the terms of Evans, the conditions offered were substantially different and failing to take the job would not meet the test of failing to mitigate.
The case highlights that when an employer offers an alternative position, rejecting the offer does not amount to failing to mitigate as long as the conditions offered are substantially different. It is important to keep in mind that each situation has different facts which can lead to different outcomes.
It is important to analyze the facts of each individual situation and to apply them appropriately to the legal tests set out by the Courts, it is best to talk to a lawyer specializing in Employment Law when facing this challenging situation. Please contact Monkhouse Law today at (416) 907-9249 for a free 30 minute consultation over the phone to discuss your options.
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