Poor job search may reduce damage in wrongful dismissal lawsuits
If you are involved in a wrongful dismissal lawsuit with your employer, you should try to mitigate your damages. This means that you should regularly search for another reasonable job and it is good advice to document this search well, by journaling your activities every day. If you don’t, the employer will argue that you didn’t try to get reasonable alternative work and your damages should be significantly reduced.
The actual onus is on the employer to prove that you did not take reasonable steps to seek alternative employment. Some judges would say that the employer must also prove that there were jobs available if you had searched. Taking a few weeks or maybe a month as a break to work on your resume and weigh your options wouldn’t usually be held against you by a judge, but the efforts should start soon after.
Jean was a call center manager for an airline for 35 years when she lost her job at the age of 61 as a result of the pandemic.
She was given two months’ notice and did her job even though she knew the guillotine was about to fall. She even traveled to Manila, Philippines to train new employees who took her job. The employer argued that during those two months when she knew her time was approaching, Jean should have looked for work. The judge decided that was unreasonable.
As part of its program, the employer offered outplacement counseling with people who would help write a CV and teach how to search for a job and interview. The employer argued at trial that Jean had failed to mitigate his damages by not taking advantage of reclassification advice. The employer, however, made the mistake that many employers make and did not make it clear that John could take advantage of outplacement advice without being deemed to have accepted their severance offer. They lost on that argument too.
Jean’s work had been a big part of her life for 35 years and she was sad and unmotivated and did nothing to look for work until two months after her last day.
Over the next six months, Jean’s job search efforts were described as passive by the judge. When asked during the litigation process why she hadn’t applied for jobs in the airline industry in which she had so much experience, she said she had none left in her. . She had put 35 years in the industry and had been canned. She needed a fresh start.
The employer was able to demonstrate that during this period, there were several job postings for positions with competitors comparable to the one John had held.
Jean would have received 24 months reasonable notice, but of course there was a two month reduction in the period of notice to work and the judge further reduced her damages by three months because she had not sought a job diligently and in the industry in which she had expertise.
Considering Jean’s weariness with her job search efforts, she was lucky the judge only reduced her damages by three months in that capacity. It is not up to your former employer to finance your decision to change careers.
Although the law states that the onus is on the employer to prove that you have failed to mitigate your damages, the employee must conduct and document a job search effort. If there is no evidence of this happening on a strong enough basis, it will affect the amount of severance pay the employer must provide. If you’ve been laid off and are starting your job search but don’t have an accepted severance agreement with your employer, create a journal. Every day, write down the job search websites you’ve used. Write down any conversations you have with friends, family, or anyone else regarding job opportunities. Keep track of all jobs you apply for and any correspondence sent or received. Until the matter is resolved or an agreement is signed, it is your responsibility to show that you are making reasonable efforts to mitigate.