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The Impact of Poor Mitigation Efforts for Notice Awards


If you’ve lost your job recently, it is strongly recommended to maintain a log of your efforts to find new employment. This could help you avoid the same fate as the Plaintiff from the recent Toy v. 0954516 BC Ltd., decision. Unfortunately, Mr. Toy did not mitigate his losses by taking reasonable steps to find similar or comparable employment. As a result, his notice entitlements were reduced accordingly.

Toy v. 0954516 BC Ltd: The Facts

The Plaintiff, Mr. Sidney Toy, was employed as a fuel and scale attendant with the Defendant at Vedder’s Liquefied Natural Gas Station (“Vedder”) when he was dismissed without cause in late December 2020. He was employed with Vedder for approximately 5 years and was 61 years old when he terminated. Following his wrongful dismissal, Mr. Toy sued Vedder for damages in lieu of notice. Justice Walkem then needed to determine the appropriate length of the notice period, and, significantly for this discussion, whether Mr. Toy’s mitigation efforts to find comparable employment were adequate enough.

Mr. Toy’s duties involved refuelling trucks and other vehicles, yard cleaning, customer service of trucking customers, invoicing customers and data entry. Vedder argued that these duties provided Mr. Toy with skills that were highly transferrable to other retail and administrative positions. Vedder also argued that comparable jobs were readily available.

Mr. Toy gave evidence that he only applied for 3 jobs that he found on the internet and in newspaper:

  • Friesen Group warehouse worker (interviewed but not hired);
  • Johnston’s Meat warehouse worker (interviewed but not hired); and
  • McDonald’s crew member (did not hear from them after the application).

In March of 2022, Mr. Toy was finally able to secure employment as a security worker. He did not earn any other income from when he was laid off in December of 2020 to this point.

Analysis

The purpose of reasonable notice is to provide the employee with a fair opportunity to find similar or comparable employment. The dismissed employee then has a duty to mitigate their losses by actively seeking out similar employment. If a dismissed employee fails to take reasonable steps to mitigate their losses, notice entitlements may be reduced.

Vedder argued that there were similar employment positions readily available for Mr. Toy that he should have applied for. Vedder listed “chicken catcher”, “power washer”, general labourer”, “painter”, or “bricklayer”, but these jobs do not necessarily align with his skills he learned while employed with the Defendant. Justice Walkem quipped that she does not envision Mr. Toy – who is 62 years old – pursuing the profession of chicken catcher.

However, simply because a job requires less formal training or education, and may be considered unskilled, does not mean that employee should have to apply for any unskilled position. There must be some relevance, or match in skillset to the position.

As stated above, Mr. Toy only applied for 3 jobs following his dismissal. Vedder argued that this level of effort was not reasonable, stating his job search efforts were “non-existent.” Justice Walkem noted that the number of applications is not the only way to measure the job search effort level. It cannot be the sole determinant on which reasonableness is judged. However, while the number of applications is not the only measurement for reasonableness, merely making 3 applications was not enough in these particular circumstances. Justice Walkem also believed a few computer searches and driving around nearby looking for available employment was insufficient. Had he more actively searched for comparable work, Mr. Toy would likely have secured employment earlier than March of 2022.

As such, Mr. Toy did not take active steps to search for reasonably similar employment.

The Order and Main Takeaway

Mr. Toy failed in his duty to mitigate his losses following dismissal by not taking active steps to search for reasonably similar employment. As a result, the notice period awarded to the Plaintiff was reduced from 5.5 months, to 3.5 months (2-month reduction for lack of mitigation efforts).

This decision is a good reminder to dismissed employees to ensure they are making reasonable efforts to search for similar employment and to keep a log of their attempts.

The post The Impact of Poor Mitigation Efforts for Notice Awards appeared first on Stacey R. Ball.



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