Mitigation
In the employment law context, mitigation has two meanings:
- First, an employee who is laid off, dismissed or terminated has a duty to look for alternative work.
- The second form of mitigation in employment law is the right of the employer to deduct, dollar for dollar, money you receive during the (reasonable) notice period from monies your former employer would otherwise owe you as reasonable notice payment.
In respect of the duty to look for alternative work after being fired or dismissed, an employee should keep a log of the job hunt efforts made.
Interestingly, the employee does not have to take a job at a substantially reduced pay during the notice period, and in some instances, training may be an acceptable form of mitigation.
Generally the onus is on the employer to prove your job search was unreasonable and that if you had been more diligent you would have found employment. If the employer can not so prove, you should not have your notice period reduced for meagre job search efforts.
(See Michaels v. Red Deer College, 1975 CanLII 15 (SCC), [1976] 2 S.C.R. 324 (S.C.C.); Yiu v. Canac Kitchens Ltd. [2009] O.J. No. 871 (S.C.J.) at para. Link v. Venture Steel Inc., [2008] O.J. No. 4849, 2008 CanLII 63189 (ON SC), 2008 CanLII 63189 (ON S.C.), paras. 45 and 46; Contreras v. Canac 2010 ONSC 849 (CanLII)).
If however, your same employer offers you a different position at the same or very similar pay, in most cases, you must take it or risk losing pay in lieu of notice. The exception would be where you were a victim of harassment or some other circumstance which would make refusing the employer’s offer of a new job reasonable.
In respect of the employer’s right to deduct from what they owe you on dismissal any monies you receive during the notice period, normally the severance and notice monies owed to you under the Employment Standards Act are exempted from this employer claw back. However, normally you do have to pay back Service Canada or E.I for any employment insurance money you have received during the notice period. An employer is also, usually, entitled to deduct any money you have received in another job during the notice period, dollar for dollar as against the notice pay they would otherwise owe you.
Resigning
Generally employees who resign lose their right to reasonable notice or pay in lieu of notice on dismissal.
As a result, it is usually not advisable to resign.
Obviously there are circumstances in which as an employee you are so miserable at work that it is not good for your mental health to continue your employment. You may also just want to quit. If you are leaving for a health reason, you may still be entitled to reasonable notice, but it is better to tell the employer you are quitting for health reasons, and back that up with a note from a doctor.
As an employment law lawyer, Guy Hunter provides advice in terms of your rights as an employee, not in terms of what is best for your mental health. Whether it is healthier for you to resign a job is a conversation you should have with your doctor or mental health service provider.
From a legal perspective, sometimes you can resign but still be entitled to pay, reasonable notice, or wrongful dismissal damages. Some examples would be:
- an employee who is being sexually harassed or bullied at work;
- an employee subject to workplace violence;
- where the communications between the employer and the employee make it unclear whether the employee intended to resign;
- an employee forced to work in an unsafe environment;
- an employee who goes off on a sick leave with medical backing but writes to the employer that he or she can’t work anymore because of his/her illness or injury.
In order for a resignation to terminate an employee’s rights the resignation must be “clear and unequivocal.”
In other words, someone who says in a letter or email to the employer, “I am not feeling well, you stress me out, I’m not coming back to work,” and then gets a doctor’s note that she/he is off indefinitely due to “health reasons” would most likely be found not to have resigned at law.
Also, sometimes a worker in a moment of anger says, “I quit,” and storms out of the office, but comes back to work the next day to work as if nothing happened. Has this employee unequivocally resigned? Not likely.
Sometimes whether or not an employee has quit is what lawyers call “ a question of fact.” In other words, it depends on whose story of what happened in the workplace surrounding the alleged resignation is believed.
When every attempt is made to provide helpful information in this website, you may not rely on the information above as legal advice.