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The Duty to Mitigate After You Lost Your Job: What Does That Mean?

So, you’ve been terminated from your job. You might be focusing on challenging your employer for more money, and rightly so. They caused this by firing you! Your job search is probably the last thing you would think about. However, after you have been terminated, one of the first things a lawyer will tell you is that you are under an obligation to mitigate the losses from the termination.

What does mitigating your losses mean?

In short, you cannot get money from your former employer if you made the problem worse. For example, if your apartment catches fire, you are required to take reasonable steps to reduce what is destroyed, and by extension how much the home insurance policy is required pay you to replace. This may be pulling a fire alarm, or calling 911, or safely putting out a small fire with an extinguisher. You are not required to try to save your possessions from a burning building, or attempt to fight a house fire was a garden hose.

Similarly, after you have been terminated, you are obligated to make reasonable efforts to reduce the time you are unemployed by looking for similar employment. Alternatively, you can go back to school or start a business. Bottom line: You can’t just sit around and do nothing.

As with everything that could possibly be relevant in a lawsuit, you should keep a record of your efforts to find another job. These records will be critical evidence in your wrongful dismissal case to argue that you made good faith efforts to meet your duty to mitigate.

What happens if I find a new job?

That’s the kicker. If you are offered a new job, any money you earned or could have earned from that employment will most likely be subtracted from any amount you are awarded at the end of your case. Failing to deal with mitigation properly has a good chance of making your case unwinnable.

This is why it is critical to have a lawyer you can trust throughout your case. Your lawyer can walk you through the best next steps for your situation.

It’s a two-way street to mitigate.

Let’s say your employer has terminated you and wants to argue that you have not taken the appropriate steps to mitigate your losses. They have the onus to prove that you have failed to make these reasonable efforts. The employer must also provide evidence that there were jobs available that you could have gotten and that you were provided with these job postings.

Courts will often require an employer to go beyond merely providing job postings, requiring them to show they took active steps to help the employee find a new job, such as providing leads, job counselling, recruiter services, resume workshops, and a reference letter.

In the case De Castro v. Arista Homes Limited 2024 ONSC 1035, the only evidence Arista Homes Limited (the defendant) had was three LinkedIn biographies of individuals in similar positions to Ms. De Castro, who had obtained new jobs during the period in which she was unemployed. The Court held that this was inadequate evidence and ruled that the defendant had failed to show the employee had not made a good-faith effort to find new work.

What if you have a good reason to pause your job search efforts?

The defendants in De Castro also argued that the plaintiff had delayed her job search and so she had failed to meet her mitigation duties. This backfired horribly, as the plaintiff was required to detail to the Court how she was unable to look for jobs as a result of her caring for daughter who had cancer and then passed away from the disease.

The Court held that there was nothing unreasonable about delaying the commencement of a job search in order to take care of a child with cancer and mourn the child’s death. As scary as the courts can be, they take dim view of employers trying to capitalize on the personal tragedies and vulnerability of employees. Job search efforts are required to be reasonable, not perfect.

How do I start?

Talk to an employment lawyer. In certain cases, such as fixed-term contracts, there is no duty to mitigate (CROSS LINK TO BLOG ABOUT FIXED TERM CONTRACTS). In most other situations, your job search efforts will be key evidence in your wrongful dismissal case. Doing something properly from the start is far easier than trying to fix your mistakes retroactively. Many people have never been involved in a lawsuit, so there are common traps that can cause headaches down the lines.

There is no one size fits all requirement for how you conduct your job search or track your efforts, but there are a few general rules:

  1. Don’t Panic: Just because you were terminated and may be in a lawsuit does not change reality. For example, if you haven’t looked for a job in years, you will need to update your resume to even be able to look for new employment;
  2. Be Organized: Having a system or routine helps your evidence and credibility, and will make producing your job search evidence much easier. A notebook detailing your job search down to the day is useless if you lose it;
  3. Preserve Evidence: You need to make sure to keep anything that could be important, in a way that keeps it safe. Scan or take pictures of physical documents and save emails as PDFs. Another trick for preservation is to provide a copy to your lawyer. It may be needed at some point in the litigation, and your lawyer is probably better organized than you are; and
  4. Care for Yourself: Being terminated is often emotionally painful. Imposing additional overwhelming stress in terms of mitigation efforts is only detrimental to your case and likely your job search. There are a finite number of job postings, and some industries do not post positions at all. If you have reviewed the new job postings within 50 kilometers lying in bed on your phone, make sure you have a record of your efforts and then do something else.

The lawyers at De Bousquet PC are here to help, whether you just need someone to explain your termination letter and severance offer actually means or represent you in a Court case against your former (or current) employer. Call us today if you’ve been terminated and want to learn more about what steps you are legally required to take.

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