In Ontario, for an offer of working notice to a constructively dismissed employee to be considered for mitigation purposes, the employer must prove the offer was clearly made AFTER employee refuses to accept changes

  • The case is here: Farwell v. Citair, Inc. (General Coach Canada), 2014 ONCA 177
  • Employee was moved to a different, inferior, position within the employer’s business
  • Employee refused to accept the change and told the employer he was treating the reorganization as a constructive dismissal
  • Employee sued for constructive dismissal
  • Employer argued the employee failed to mitigate his damages when he refused to accept the new position
  • Court found there was no evidence that the employer extended the offer of re-employment (ostensibly, the new position) to the employee after the employee claimed he was constructively dismissed
  • The Court said this was fatal to the employer’s argument regarding the employee’s failure to mitigate.
  • The Court stated:

[t]o trigger this form of mitigation duty, the [employer] was therefore obliged to offer [the employee] the clear opportunity to work out the notice period after her refused to accept the position […] and told the [employer] he was treating the reorganization as constructive and wrongful dismissal” (para 20).

As is typical in these situations, it appears there was no follow-up after the employee balked at the reorganization.  The employer may have saved itself a lot of money by making it very clear to the employee that he would be able to work out the notice period in the new position (although this is questionable, given the trial judge’s finding that the employee was acting reasonably when he refused the new position).  

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