Author: Daniel A. Lublin
More workplaces will use concept of ‘working notice’
We have decided to fire you. Now go back to your desk and finish your work!
After a bitterly fought election of a new union executive whose candidacy he had opposed, Teamsters business agent Donald Evans saw the writing on the wall. When the new union president took over, Evans and five other employees lost their jobs.
After 23 years with the Teamsters, 58-year-old Evans thought he deserved better; he wanted a severance package that would see him retire. Evans suggested that he would work for another 12 months and that he be paid for 12 more. The Teamsters disagreed. Five months after Evans left, they sent him a letter telling him that if he refused to come back to his job, they would treat his absence as misconduct and pay him no more. Rather than return, Evans sued.
At trial, the judge considered whether Evans was obliged to return to the very workplace that had fired him. Agreeing with Evans that to expect him to return to his old job would be unreasonable, the trial judge awarded him $100,000 in severance, known as wrongful dismissal damages.
Appealing the ruling to the Supreme Court of Canada, the Teamsters argued that the law of mitigation permitted them to order Evans back to the workplace, even after he had already been fired. The legal duty to mitigate provides that dismissed employees are required to take all reasonable steps to replace their jobs. Where an employer can establish that other, comparable, jobs were available, an employee who fails to apply for them, or turns one down, may risk not being entitled to further severance.
In this case, the Teamsters argued that Evans’ failure to return to his job should have been viewed as a failure to mitigate. The Supreme Court agreed. By offering Evans his old job back on the same terms as before, the Teamsters were able to show that a comparable job was open to an employee who declined it.
The ruling in this case will place many employees in “the twilight zone,” somewhere between having been fired and expected to later return. Employees, and their lawyers, should carefully observe the following lessons:
- Where an employer offers its former employee a bona fide chance to return to work, employees may be required to accept, unless they can objectively show that there is an atmosphere of hostility, embarrassment or humiliation in returning. Work with counsel to take steps to ‘build’ that argument.
- Employers will now, as a result of this case, more often elect to exercise their right to provide working notice of termination, requiring dismissed employees to remain at work while they look for another job.