Failure to Mitigate defeats employee’s winning claim

Date: 2007
Author: Daniel A. Lublin
Publication: Metro

Damages are offset where another job is available

How do you beat your ex-employer in court but ultimately collect little or no damages?  Just ask Leo Magnan.  He succeeded in proving that he was wrongfully dismissed but failed to collect the true value of his claim.  His mistake: Magnan couldn’t demonstrate that his dismissal caused him a financial loss.
Magnan was a Customer Support Advisor for Western Canada-based Brandt Tractor Ltd., for 38 years.  Mistakenly believing that Alberta human rights legislation permitted it to mandatorily retire Magnan when he turned 65, Brandt terminated him when it effectively forced his retirement, despite Magnan’s statements that he did not wish to retire.
Realizing its error after a letter from Magnan’s lawyer, Brandt reconsidered and offered Magnan his job back.  However, Magnan had already introduced his successor to his customers and had even accepted a retirement gift at the company’s annual holiday party days earlier.
Instead of returning to his job, Magnan sued Brandt, claiming that its actions in mistakenly retiring him were tantamount to his dismissal and that it was unreasonable to expect him to return, especially after he was essentially forced to retire against his will.
Recently, an Alberta Court agreed with Magnan, concluding that he had been dismissed.  However, in calculating the value of Magnan’s winnings, the Court almost entirely reduced his claim, finding that any loss that Magnan suffered could have been avoided by him.  That is, the Court found that as Magnan was going to retire even had he not been dismissed, the dismissal caused him few actual losses.  As well, because Magnan couldn’t properly show that he had looked for another job following his dismissal, the Court would have reduced his claim even had it not found that he was going to retire anyway.
Employment law files can be won or lost where one side or the other doesn’t appreciate how an employee’s post-dismissal actions can affect the value of his or her claim.  Employees can avoid this result by observing the following advice:

  • Make real efforts to find other work following a dismissal so as to avoid as much economic loss as possible.  Courts frown on employees who take little or no action to find other work and then sue their former employers for their salaries during that time.
  • To avoid an argument that other work was available had an employee simply looked, I advise my clients to apply for at least one or two jobs per week.
  • Keep detailed notes, documenting all efforts undertaken to look for other work to ensure that there are no documentary gaps.
  • Older employees in provinces without mandatory retirement should be cautious about mentioning planned retirement dates, especially if they suspect the company is planning to end the relationship.