The answer: it depends.
Upon dismissal, employees have an ongoing obligation to mitigate their damages. In certain circumstances, such a duty requires employees to return to work.
In Gent v. Strone Inc., the Superior Court of Justice determined that the employee failed to appropriately mitigate his damages as he had an obligation to return to work under the circumstances.
The employee was a fifty-three-year-old Health and Safety Training Specialist who had worked for the company for more than 22 years. He was temporarily laid off due to a lower work volume. The employee was told he’d be recalled as soon as business improved. Shortly after, the employee filed a constructive dismissal lawsuit. The employer responded to the employee and advised that he might be recalled to work and that he would be periodically contacted to provide his availability. Within less than a month, the employer recalled him to work on substantially the same terms and conditions as his original employment. The employee refused to return to work.
The employee argued that there was no employment term giving his employer the right to temporarily lay him off and that he did not consent to the layoff. The court agreed that the employee had been constructively dismissed. However, the court agreed with the employer in finding that the employee should have returned to work. The Court confirmed that the test for mitigation of damages is “whether a reasonably objective individual in his circumstances would not have concluded that returning to work would be too embarrassing, humiliating or degrading”.
The Court noted that the recall letter provided to the employee addressed the issues that may have been of concern to the employee:
- The letter provided a return to work date but gave the employee the opportunity to
discuss an alternative date;
- The letter stated that the employer had no hard feelings or ill will towards the
employee and that he was considered a valuable employee;
- The letter indicated that the employee would not suffer any reprisals for returning
- The letter acknowledged that the employee was not admitting that future layoffs
were permissible; and
- The letter invited the employee to contact the company to discuss any questions he
In review of the evidence and paying significant weight to the recall letter, the Court decided that a reasonable person in the employee’s circumstances should not have
concluded that returning to work would be too embarrassing, humiliating or degrading. The employee did not provide evidence to the contrary. Therefore, the employee failed to appropriately mitigate his damages by failing to return to work after his constructive dismissal.
Accordingly, employees may have a duty to return to their employer after a constructive dismissal, depending on the context of the dismissal. If the situation resembles the one in Gent v. Strone Inc., an employee will likely have an obligation to mitigate his or her damages by returning to work.