Every employee suing for wrongful or constructive dismissal is required to mitigate his or her losses by taking reasonable steps to search for new work. This duty to mitigate is a topic that I have written about on several occasions.  You can find links to these articles here and here.

A question that I am asked from time to time by clients is how long can one wait before beginning the search for new employment.  Ideally, the search should begin right away, not long after the employment relationship has been terminated by the employer.  However, the courts will allow some latitude, affording an employee some time to gather himself or herself before beginning the search for another job.  This was addressed in the decision in Samuel v. Benson Kearley IFG.

In this wrongful dismissal action, the employee waited four months before beginning the search for a new job.  According to the employee, the shock and distress of losing her job prevented her from looking for another position, although she did not seek medical attention during that period of time.  The employer, on the other hand, found 38 comparable positions that were available over that four-month period that the employee could have applied for.

In his decision, Justice Charney concluded that the employee failed to take reasonable steps to mitigate by looking for new work over the course of that timeframe.  In reaching this decision, he wrote, “While I understand that the shock of losing one’s job might result in some delay before a job search begins, in the absence of some medical evidence to corroborate her claim, I am unable to accept her assertion that the “shock and distress” of losing her job prevented her from actively searching for a job for as long as four months.”

In the result, Justice Charney reduced the employee’s damages for pay in lieu of notice by one-third, from six months to four months.

The takeaway for employees is that unless one is suffering from mental distress that is beyond the usual upset that comes with the loss of employment and is medically supported, it is generally not a viable excuse for commencing the job search.  The takeaway for employers is that, in the face of a wrongful or constructive dismissal claim, it is generally a good idea to keep track of similar positions that are available in the job market.

Written by Jeffrey Robles and originally published on the blog at http://jeffreyrobles.com. Jeffrey represents clients in the areas of employment law and personal injury in the Ontario Superior Court of Justice.  

This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.