Date: July 15th, 2012
Author: Daniel Lublin
Your job has been eliminated – but get back to work! After 18 years at a Downtown Toyota dealership in Toronto, Aleem Ghanny was told that his position as a service manager would suddenly end. However, there was one catch: Ghanny was told his job would be relocated to another related dealership only a few blocks away where he could continue working at the same rate of pay.
The sticking point for Ghanny was that he did not trust the owner. By transferring, he believed that his years of service would no longer be recognized and he was worried that the new dealership would also soon close. Believing that he was legally entitled to reject the transfer based on his two concerns and instead sue for wrongful dismissal because his original job disappeared, Ghanny refused to report for work and began to look for another job.
At a recent trial, Ghanny’s former employer argued that the law required him to take the new position it offered him at the related dealership, even if there were no guarantees.
The legal duty to “mitigate” provides that dismissed employees are required to take all reasonable steps to replace a lost job. Where an employer can establish that other comparable jobs were available, an employee who fails to apply for them, or turns one down, may not receive any damages, such as severance, that would otherwise have been required.
Here, Ghanny’s employer was able to show that the job it offered to him was comparable and that he declined it. On this basis, Ghanny’s refusal to report to the new dealership was objectively wrong, ruled the court. The position and pay were the same and, even without any guarantees, Ghanny had an opportunity to continue working instead of being unemployed.
The ruling in this case will place many employees in “the twilight zone,” somewhere between having been fired yet expected to continue working for the same or even a related employer. Employees, and their lawyers, should carefully consider whether it makes sense to reject an arguably comparable job offer even if there are serious concerns about the job.
Date: July 15th, 2012