How do you beat your ex-employer in court but ultimately collect little or no damages? Ask Leo Magnan.

Magnan succeeded in proving that he was wrongfully dismissed but failed to collect the true value of his claim. His mistake: he couldn’t demonstrate that his dismissal caused him financial loss.

Magnan was a 65 year old customer support advisor with Brandt Tractor Ltd for 38 years, who had no intention to retire when his employer forced him to do just that. Brandt mistakenly believed that Alberta Human Rights legislation permitted it to enforce mandatory retirement for employees at 65.

Brandt reconsidered after a letter from Magnan’s lawyer. They offered Magnan a different job with the company because Brandt had already filled his position.  Instead of accepting the new position, Magnan sued Brandt, claiming its actions in mistakenly retiring him were tantamount to his dismissal and it was unreasonable to expect him to return, especially because the retirement was against his will. Although contrary to his claim, Magnan had accepted a valuable retirement gift just days prior to his lawyer’s letter.

An Alberta court agreed with Magnan’s claim however, in calculating the winnings, the court almost entirely reduced his claim. It found that Magnan could have avoided the loss he suffered. That is, the court found that as Magnan was going to retire even had he not been dismissed, the dismissal cause him few actual losses. The decision also indicated that Magnan couldn’t properly show he had looked for another job following his dismissal thus, significantly reducing his claim.

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 dismissal 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 and 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.

You can read the article in full here.

Daniel A. Lublin is a Toronto Employment Lawyer.  He can be reached at [email protected] or through his Website www.toronto-employmentlawyer.com.