In Fredrickson v. Newtech Dental Laboratory Inc.
the employer, Newtech, terminated the employment of Ms. Fredrickson in July, 2011 when it purported to lay her off. In the fall, Ms. Fredrickson filed a wrongful dismissal lawsuit against Newtech. Subsequent to Ms. Fredrickson filing her lawsuit, Newtech made several offers to re-employ her.
At trial, Newtech was successful in convincing the judge that Ms. Fredrickson had failed in her duty to mitigate by not accepting the offer(s) of re-employment, relying on the reasoning in Evans
However, the Court of Appeal delved deeper into the analysis of two specific aspects: the substance of the offer(s) of re-employment and the state of the employment relationship. Citing the idea that the “contract of employment is typically of longer term and more personal in nature than most contracts, and involves greater mutual dependence and trust”, the Court found that Newtech’s various offers of re-employment were not “make-whole” offers, and also that Ms. Fredrickson’s supervisor discussed the fact that she would not likely return in the circumstances.
Accordingly, the Court of Appeal found that “any chance of repairing the employment relationship was irretrievably lost” and that Ms. Fredrickson could not have been expected to mitigate her damages by accepting any of Newtech’s offers.
This stands as a lesson to employers that to rely on the wrongfully-dismissed employee’s obligation to mitigate is not a foolproof strategy. As mentioned, when seeking to implement changes to conditions of employment the Evans
decision certainly provides some assistance in protecting employers from claims of constructive dismissal. However, if an employer simply makes an offer of re-employment knowing the employee could never accept and therefore thinks itself absolved under the doctrine of mitigation, that employer must be prepared to live with the consequences of having its bluff called.
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