When seeking damages following a dismissal, employees have a duty to mitigate their loss by seeking other employment – so could HR trigger that obligation by offering them an alternative role? HRM asked a leading employment law
yer to explain the complexities.
“Like most legal questions, the answer is – it depends,” says Chris Forguson
. “It’s very, very far from clear cut.”
According to Forguson, employees are obligated to alleviate their loss by looking for and accepting alternative employment but only if it’s considered reasonable.
“Generally speaking, the type of job that an employee would be expected or required to take, if offered by their current employer, is similar to the type of job they’d be expected to accept if they were out in the open market looking for a job,” he explains.
While Forguson says they’re no specific definition of “reasonable,” there are a number of factors that would be taken into account, including the salary of the replacement job and the seniority.
“The employee would likely be required to take a job earning a little bit less but there is no clear cut answer on how much that little bit is,” he reiterated. “Likewise, the employee might be expected to take a job at a lower level but it depends on how far down it is.”
Another major factor in deciding whether or not an employee would be required by the court to accept another job by the current employer comes down to the question of embarrassment or humiliation.
“In many situations, the very events that led up to the termination could be a catalyst for some ill will in the workplace so it may well not be appropriate for them to return – it may be embarrassing for the person,” he explained.
“This person may have had a power struggle with a fellow employee and now they are asked to go and report to this employee,” he suggested. “That in its self could lead to an arguable position where it would be embarrassing for them to take the job.”
Large organizations undergoing restructuring tend to be in a strong position to offer workers alternative employment before they’re even fully dismissed.
“If you’re in a large workplace, there are no issues with the employee’s performance, and it’s just a case of restructuring, then if an employee is probably going to have to take a job if it’s fairly similar,” he told HRM.
“However, if it’s something that could be arguably embarrassing, or it pays significantly less, or it’s at a significantly lower level, then they wouldn’t have to,” he adds.
Despite the apparent complexities, Forguson says it’s an issue that’s far from uncommon.
“I would say whenever there is a restructuring of the business or a sale of all or a part of a business then those concerns come up because oftentimes the entity purchasing the business wants to make some changes – they don’t want the exact same business structure that was in place prior to the acquisition so it does come up quite a bit,” he revealed.
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