Failing to Mitigate His Loss
An employee who refused to return to work after mistakenly being fired from his job was awarded no damages because he failed to mitigate his loss. The Court further ordered the employee pay his employer legal costs of $50,000 (2012 ONSC 4309 (CanLII)).  On September 11th, 2013, the employee lost his appeal to the Ontario Court of Appeal. The ONCA upheld the trial court’s decision and ordered the employee pay an additional $7,500 in costs (2013 ONCA 548 (CanLII)).
Wrongful Dismissal Litigation
Earl Chevalier was a 33-year old employee of an automotive service centre and had held a managerial position at one of the service centre locations for approximately 18 years. Active Tire took over the operation of the service station managed by Mr. Chevalier. After Active Tire’s acquisition, Mr. Chevalier continued his employment at the original service station as well as at three other locations.
During this time, Mr. Chevalier felt mistreated and felt as though his job duties were demeaning. Active Tire fired Mr. Chevalier on the basis of poor performance. Mr. Chevalier immediately filed a wrongful dismissal lawsuit. A few days after Mr. Chevalier commenced the lawsuit, Active Tire sought to recall him to his job, stating that it had acted under false assumptions that it had the right to fire him and issued a sincere apology for its mistake. Mr. Chevalier refused the offered position and declared he would continue with the wrongful dismissal litigation. After 17 months, Mr. Chevalier found a job as a service manager at a competing service industry.
At Court, Mr. Chevalier argued that he had been constructively dismissed and asked for 24 months’ notice and asked for moral damages. Active Tire agreed that Mr. Chevalier had been constructively dismissed, but argued that he was not entitled to the damages he sought because in refusing the employer’s offer to return to work, he had failed to mitigate his damages.
Going Back to Your Job After Being Fired to Minimize Any Losses
The Court agreed with the employer, upholding the longstanding principle of mitigation. The doctrine of mitigation requires that an employee who has been terminated from his or her position take all reasonable steps to minimize any losses he or she has suffered. This means you would go back to your job after being fired and accept an offer of re-employment.  The only exception to this requirement to mitigate is where it would be unreasonable to do so because a return to work would oblige the employee to “work in an atmosphere of hostility, embarrassment or humiliation”.
Mr. Chevalier appealed the Superior Court decision. The Court of Appeal agreed with the trial judge’s decision that Mr. Chevalier should have returned to work when offered re-employment and that in not so doing; he had failed to mitigate his damages. The Appeal Court also found similarly to the trial judge that Mr. Chevalier would not have been subjected to a hostile atmosphere in accepting the re-employment.
In the end, Mr. Chevalier was entitled to nothing and, in fact, had costs ordered against him in the amount of $57,500. This decision clarifies and strengthens an employee’s requirement and duty to mitigate his or her damages.
All situations are different, and the above is not to be taken in whole or in part as legal advice. If you have questions about your particular situation, feel free to contact  Whitten & Lublin, employment lawyers.