Duty to Mitigate is Alive and Well
There was a job opportunity for the terminated employee. He didn't pursue it and he didn't provide a reasonable excuse. His claim for wrongful dismissal damages was denied.
Rod Koenig had been hired by Brandt Tractor in 1987 and was terminated 22 years later. He was given 9.5 months of working notice in January 2009, finished work in October 2009 and didn't start new employment until April 2010.
But in June 2009 he was approached by a former work colleague, Mr. Jones, about a comparable position. Mr. Koenig expressed no interest and did not pursue the opportunity. Mr. Jones considered him to be ideal for the position and would have hired him if he was interested.
Brandt Tractor claimed that Mr. Koenig failed in his duty to mitigate. He responded by swearing in an affidavit that he had reservations about working with Mr. Jones and referred to billing practices he didn't approve of. Brandt Tractor responded with affidavit evidence from Mr. Jones and from the Branch Manager for whom both Jones and Koenig had worked.
The decision makes it clear that a former employee cannot be forced to work where he prefers not to work, but when he is seeking damages from his former employer he has a duty to mitigate. That means:
he must act reasonably and take reasonable steps to maintain his income, and
there must be a "constant and assiduous application for alternative employment".
The judge concluded:
The evidence before the court of the plaintiff's reason is no more than a vague "disapproval" of Mr. Jones' billing practices. Mr. Jones was highly regarded by the Branch Manager. Mr. Koenig does not allege dishonesty. He simply "had reservations" about working with him. On the evidence I conclude Mr. Koenig did not act reasonably when he decided not to pursue employment at Freightliner. Put another way, the evidence establishes that Mr. Koenig failed to mitigate his losses.
This failure to mitigate is fatal to the plaintiff's case. If he had taken the job, as he reasonably should have, then he would have suffered no loss of income.
The claim was dismissed with costs awarded to Brandt Tractor.
damages duty to mitigate mitigation termination wrongful dismissal