Impact of COVID-19 on the Duty to Mitigate: Early Indications in BC Supreme Court Decision
Following termination of employment, employees who are seeking damages for wrongful dismissal have a duty to mitigate their losses by taking reasonable steps to find comparable work. Employers considering issues related to common law reasonable notice in recent months should consider whether and to what extent the COVID-19 pandemic will affect the notice period.
In Mohammed v. Dexterra Integrated Facilities Management, 2020 BCSC 2008, the British Columbia Supreme Court addressed the issue of mitigation where a dismissed employee asserted that the COVID-19 pandemic restricted his ability to find new work.
The employee, Mr. Mohammed, a cleaning staff supervisor, was dismissed by Dexterra Integrated Facilities Management (“Dexterra”) without cause, along with all other employees working at his location, with four weeks of working notice. Mr. Mohammed’s employment with Dexterra ended in November 2019 after 17 months of service. He was 51 years old at the time. Mr. Mohammed immediately secured new employment with another company, Alpine Maintenance, but his employment there was terminated after two months. He had not worked since.
Mr. Mohammed brought a wrongful dismissal action, arguing that four weeks of notice was insufficient, and that he had tried, but was unable, to find work in his field following his employment with Alpine Maintenance. As summarized in the decision, he testified that “the COVID-19 pandemic has impacted his ability to find work” (para. 22). Dexterra argued that the 4 weeks’ working notice it provided to Mr. Mohammed was sufficient, but did not challenge his claim that the pandemic interfered with his ability to find alternative work.
Having regard to Mr. Mohammed’s age and duties while employed by Dexterra, the Court held that Mr. Mohammed was entitled to five months’ notice. The particular factors that persuaded the Court that the reasonable notice period was 5 months were Mr. Mohammad’s age (finding that being over 50 years old was a material disadvantage), his critical role for the employer (notwithstanding he was a supervisor and not a manager), and his dismissal after only 17 months of employment (based on cases concerning the impact of short service). It should be noted that the Court did not find that the length of reasonable notice was influenced by the COVID-19 pandemic. However, in assessing whether Mr. Mohammed had mitigated his losses, Justice Walker stated that economic factors “arising post-termination, such as those from the COVID-19 pandemic, can be relevant to mitigation if they impact the availability of equivalent employment” (para. 27). Justice Walker subsequently found that Mr. Mohammed had discharged his duty to seek new employment.
Takeaways for employers
This is an early decision regarding the relevance of the COVID-19 pandemic to an employee’s duty to mitigate. Unsurprisingly, the Court concluded that the pandemic might affect the duty to mitigate if it negatively affects the ability to find new employment. In this case, the employer did not contest the employee’s claim that the pandemic affected his ability to find new work, but we expect more decisions will come down in which the strength of such claims and the manner in which employers can rebut them is more directly addressed. It should also be noted that each case will be fact-specific. It is not a foregone conclusion that mitigation during the pandemic will be more difficult, as there are many jobs and industries where there are more opportunities and higher demand.