Legal eye: mitigating constructive dismissal

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The Ontario Supreme Court has backed up a company that constructively dismissed an employee – and then offered him his job back.

In 2008 Earl Chevalier was temporarily laid off from his job.   However, when he  instigated legal action for wrongful dismissal his employers at Auto Green + Ross offered him  his job back, telling him they had acted under the “mistaken belief” they could lay him off.

Chevalier chose not to return to work and instead continued with his legal case.

“It was constructive dismissal because there was no right to layoff but, given the employer was willing to have them return to work, there was no reason in the court’s view why the plaintiff couldn’t accept the offer,” Geoff Ryans from Filion Wakely Thorup Angeletti said.

The decision came down to the precedent sent in the case of Evers vs Teamsters , which found that as long as a reasonable person would not find it demeaning, humiliating or unreasonable to return to work then,  if the employer offers the opportunity to return to work, the employee has an obligation to mitigate the damages.

“If the employee’s not going to take that job then the onus is on them to show it would be demeaning, humiliating or unreasonable to take that offer. This was a borderline case. There were some allegations of a campaign against the plaintiff,” Ryans said.

Chevalier had been moved to another location and had been given on-going training and assistance from senior managers because he was not meeting performance goals, and was not complying with company policies, including those on customer service.

The Court found the employer was aiming to make Chevalier a “more effective contributor” to the company and that a reasonable person would have returned to work.  He had failed to mitigate his damages, and was thus not entitled to any damages.

“The take away here is that if an employee claims they’ve been constructively dismissed it’s always open to the employer to keep the offer of continued employment open to the employee if they’d rather have the employee continue working rather than pay them out,” Ryans said.






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