Failure to Mitigate Defeats Dismissal Claim

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Failure to Mitigate Defeats Dismissal Claim

In yet another reported wrongful dismissal case, a B.C. Court has minimized the damages of a dismissed employee because of a failure to mitigate.  She refused to return to work when asked to do so by her former employer.  The case is a further example of the increasingly common jurisprudence, across Canada, where courts have heavily penalized dismissed employees for failure to mitigate when they refuse to return to work, even after they file a wrongful dismissal lawsuit.

In this case, Fredrickson v. Newtech Dental Laboratory Inc. the plaintiff had worked as a registered dental assistant for more than 8 1/2years.  After what appears to have been an office dispute with her boss, the plaintiff went off on a medical leave.  During the leave, she provided minimalist medical notes.  In response to her leave, her boss demanded that she return to work and threatened to fire her without notice or compensation.  Nevertheless, she remained off on a medical leave.

A few months later, the plaintiff provided a note indicating that she was fit to return to work.  She showed up for work at her usual time and was promptly told that she was being put on a lay-off due to lack of work.  Two months after that, she retained a lawyer who sent a demand letter.  In response, the defendant told her that she was being recalled and  should return to work.  The plaintiff did not return to work but commenced a claim for wrongful dismissal instead.   The defendant subsequently offered to pay for the time that she had been out of work as part of the return to work proposal and made a similar offer after litigation was commenced.

The plaintiff sued for wrongful dismissal.  At trial, the defendant admitted that the plaintiff had been wrongfully dismissed but took the position that she had failed to mitigate her damages by returning to work.  The trial court judge agreed.

The court applied the Supreme Court of Canada decision of Evans v. Teamsters Local Union No. 31 and ultimately concluded that it was objectively reasonable for the plaintiff to have been required to return to work.  According the trial court, there had been a failure to mitigate.

In coming to this conclusion, the trial judge:

-ignored or disregarded the fact that plaintiff was put on a lay-off right when she returned from a medical leave and that she had been threatened while on leave with termination;

-disregarded or minimized the fact that the employer provided an unprofessional reference letter and a botched ROE;

-overlooked the fact that the employer did not offer to compensate the plaintiff for the time lost until after the plaintiff filed the lawsuit

-minimized the notion that the plaintiff had been subject to embarrassing and humiliating treatment.

The court concluded that the employer had not had a “sinister motive” when he put the plaintiff on lay-off and that would have been able to return to the work that she had performed for more than 8 years.  Accordingly the plaintiff was only entitled to damages from the date of the lay-off until the date she was recalled to work.  Ouch!

You can find a discussion of some other similar cases here.

The bottom line is this:

If an employer wrongfully dismisses an employee and then decides to recall the employee back to work – even after the employee commences a lawsuit, there are many court decisions from across Canada that support the position the employee must return to work.

If the employee is “recalled” to work, even after filing a wrongful dismissal lawsuit, but refuses to return, the damages awarded by a court may be minimal.



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