Law Times

Law Times • November 12, 2012 Labour & Employment Law FOCUS ON Employers taking creative approaches to mitigation Waters muddied as companies offer alternative positions, job search help E BY MICHAEL McKIERNAN Law Times mployers lawyers in the field. Richard Worsfold, a partner at Basman with the duty to mitigate for con- structively and wrongfully dis- missed employees as they search for savings in a tough market, say are getting creative Smith LLP, says employers will muddy the waters for terminated employees by offer- ing alternative positions at the same com- pany or forwarding suitable openings with other companies. "It plants the seed of doubt that the court could find they have not properly mitigated their damages," he says. "I've had a few matters where employees have raised it as a concern. They want the thing dealt with quickly so they can get on with their lives and if the employer starts creating doubt, the employee may be will- ing to settle perhaps less favourably. ployment law firm Sherrard Kuzz LLP, says that traditionally in wrongful dismissal cases, employees would present a long list of jobs they had applied for without suc- cess and the courts would accept that they had made significant attempts to mitigate their damages. In recent years, according to Kuzz, em- Erin Kuzz, a founding member of em- " didn't seriously pursue their job search by pointing to suitable positions and checking to see whether or not they applied. "I would say to clients there' their case that employees side," she says. fully create leverage for a more reasonable settlement down road, if nothing else. It' in everybody's interest at the end of the day that they get another job." as the catalyst for employers taking a more proactive role in the job search for former employees, particularly those with longer periods of service. "Employers prefer not to pay a year or eight months in salary to a long-term Worsfold sees the economic downturn employee of a Toyota dealership denied damages for his failure to accept a similar position at a Suzuki dealership owned by the same company. "One day you're told that your position is being eliminated at the end of the month but that another job at a related company is available — the same kind of position with the same pay, Edward Belobaba in summing up the case. "You're upset and not thinking clearly " wrote Superior Court Justice 'Employers prefer not to pay a year or eight months in salary to a long-term employee, especially if they feel they could get another job,' says Richard Worsfold. employee, especially if could get another job," he says. tom line for them." Jason Beeho of Toronto' ployers have realized they can relatively easily boost s no down- "Spend a little time and you can hope- s they feel they someone who is no longer there. They have to be competitive, so it' linson LLP says employees expecting an easy payday are in for a rude awakening. "Employees, to the extent that they ever did figure that constructive dismissal was a way to pull the trigger on a big windfall, are increasingly finding that may not be the case, certainly the ones that get to court." A number of recent cases have encour- aged the belief that the courts will take a close look at mitigation and are prepared to curtail damages. The Supreme Court' Evans v. Teamsters Local Union No. 31 set the standard for mitigation with the same employer in a case in which a terminated employee refused an offer to work his 24-month notice period. The top court found that while em- s 2008 decision in ployees shouldn't be "obliged to mitigate by working in an atmosphere of hostility, embarrassment or humiliation," Evans "That's quite a financial hit to take for s a matter of the bot- s Rubin Thom- had acted unreasonably in turning down the offer to return. The court allowed him to keep the five months of severance he had collected up until the point he reject- ed the offer. More recently in July this year, an On- tario Superior Court judge dismissed a man' ure to mitigate. In Chevalier v. Active Tire & Auto Centre Inc., the employee was a manager with 33 years of experience who clashed with Active Tire when it acquired his workplace in 2007. The firm laid him off before rescinding the decision on the basis of legal advice and inviting him back to his old job. Justice Richard Lococo concluded a s wrongful dismissal claim for fail- reasonable person would have accepted the job back. The employee refused. "Therefore, he failed to take reasonable steps to mitigate his damages, with the result that his damages in lieu of notice would be nil, he reached his conclusion "with some re- gret" since the employee struck him as an honest witness. Another case decided in June, Ghanny v. 498326 Ontario Ltd., saw an 18-year " Lococo wrote, adding that and you turn down the replacement job offer. You sue for wrongful dismissal. You eventually find other work but at a much lower position and salary. When the events are replayed at trial and are viewed more objectively, you realize that you should have taken the offered position, that in fail- ing to do so you didn't mitigate your losses." Beeho echoes Belobaba' suggests terminated employees take a step back and try to remove themselves from the emotion of the situation. "Evans, and the case law that has fol- s sentiment. He lowed, supports the proposition that in- dividuals needs to think very carefully about the application of the reasonable person test," he says. Beeho says taking an active role in a former employee's job search doesn't just PAGE 9 result in a stronger bargaining position against an unwilling job seeker. He says an investment in transition for more enthusi- astic searchers can pay off with a job offer that will also limit payable damages. "Placement counselling can be a fairly modest expense as against the proposition that the individual may remain unem- ployed for a considerable amount of time and rack up considerable damages," he says. "The employer is turning its mind to the mitigation issue very quickly and wants to ensure the employee' similar direction." Kuzz says employers can help stave off s mind is turned in a concerns about a hostile or humiliating en- vironment by involving employees in the process of changing their position. " them to poke holes in the process if they were involved in it." LT Lawyers divided on Cole's impact on employment law E BY MICHAEL McKIERNAN Law Times mployment lawyers are divided on the impact of the Supreme Court' context of a criminal case and involved an employer cov- ered by the Charter of Rights and Freedoms, but Christo- pher Lloyd, a partner at Aird & Berlis LLP, says the deci- sion has created uncertainty for a much wider range of employers. "Up until recently, you could fairly confidently advise privacy for employees on workplace computers. The majority decision in R. v. Cole came in the s finding of an expectation of expectation of privacy in any communications or web surfing, at Loblaws Supermarkets Ltd. "That' Supreme Court of Canada has said is you've got to as- sess each case on its individual facts and circumstances. How' " says Lloyd, a former director of labour relations s all gone out the window and basically what the letti LLP, says she doesn't see the decision extending its reach into the realm of employment law. "It' confined to that sphere," she says. employers they had pretty much carte blanche to snoop around employees' computers as along as they had an ap- propriate policy and disclosure that employees have no employee counsel arguing that the case stands for the proposition in the employment context that employees have a reasonable expectation of privacy with respect to www.lawtimesnews.com s an employer going to know how far they can go?" Angela Rae, a partner at Filion Wakley Thorup Ange- s an interesting criminal law decision, but I think it's "I strongly suspect we're going to have trade union and the use of work computers. . . . But I think the court is clear to say that it doesn't have that sweeping allocation." Rae points to Justice Morris Fish' jority decision that he would "leave for another day the finer points of an employer' s comment in the ma- issued to employees." The case involved a high school teacher facing child s right to monitor computers pornography charges related to nude and partially nude pictures of a Grade 10 student found by a technician per- forming maintenance on his work-issued computer. The school board seized the laptop, copied the pho- tographs onto a compact disc, and turned both over to police. Authorities then conducted a warrantless review of the contents. The trial judge excluded all of the com- puter evidence, but the Ontario Court of Appeal ordered See Staff, page 12 Ask the employee how they would like it to be announced. It's a lot harder for

• Cover