Duty to Mitigate and Human Rights Violations
Under the Ontario Human Rights Code, employees that are dismissed as a result of discrimination still have a duty to mitigate losses. Damages will partly be awarded as earnings lost based upon the time needed to find comparable employment. Employees that fail to search for employment, however, will not be awarded additional compensation due to their lack of effort to secure comparable employment. In other words, upon dismissal, an employee must take reasonable steps to secure alternative comparable employment in order to minimize their losses.
A case that illustrates the duty to mitigate in the event of a dismissal based on a human rights violation is Ong v. Poya Organics and Spa [2012 HRTO 2058]. Here the tribunal found that the applicant (the employee) was terminated as a result of being pregnant. The damages sought by the applicant were for lost wages from the termination date (May 16, 2011) to the baby’s due date (December 2011), and for lost EI (Employment Insurance) parental and maternity benefits until December 2012. The Employee here, however, submitted her last job application in her search for employment on July 26th, 2011; this limited her entailment to 11 weeks’ of wages lost and thus was not entitled to losses for EI benefits. This was a result of failing to mitigate losses indicated by the cessation of the employee’s job search on July 26th, 2011.
Overall, employees wrongfully dismissed on the basis of human rights discrimination still have an ongoing duty to mitigate. It simply is not enough to attempt to find comparable employment for a small duration of time. Employees must continue to search for comparable employment on a continual basis. A failure to do so will result in fewer damages awarded by the Human Rights Tribunal.