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Employee's Refusal to Return to Work After being Wrongfully Dismissed Constitutes Failure to Mitigate

Employee’s Refusal to Return to Work

Employee’s Refusal to Return to Work After being Wrongfully Dismissed Constitutes Failure to Mitigate

Ms. Frederickson had been employed with the Company as a dental technician assistant for more than 8.5 years when she was laid off by the Company after her return from a medical leave of absence.

In 2011, after an office dispute with her boss, Ms. Frederickson was told to go home and responded by saying that she might not come back. The following day she took a medical leave of absence and provided a doctor’s note which simply stated that she was unable to return to work at present. He then sent her a letter threatening to terminate her employment without notice or compensation if she did not return to work within 24 hours to clarify the type of leave she was requesting. She did not comply.

Three months later, after receiving medical clearance, she returned to work and was told by her boss that as a result of lack of work she was being laid-off. Two months later, she hired a lawyer and sent a demand letter to the Company. In response, the Company’s lawyer wrote to Ms. Fredrickson’s lawyer advising that if there had been a termination of employment, which they denied, she was obligated to return to work to mitigate her damages pursuant to a new offer of employment.

Ms. Frederickson did not return to work and sued for wrongful dismissal. The Company made several offers to reimburse her for the time that she had been laid off to the date of her return to work. Ms. Frederickson agreed to return to work on conditions not disclosed at Trial. All offers of re-employment made by the Company were eventually declined by Ms. Fredrickson and she never did return to work for the Company.

Ms. Frederickson’s evidence at Trial was that accepting re-employment would mean returning to an atmosphere of hostility and embarrassment.

The Trial Judge relied on the Supreme Court of Canada’s decision in Evans v. Teamsters Local Union No. 31, 2009 SCC 20 (CanLII) [Evans] and in doing so concluded that:

a reasonable person, in her position, would accept that returning to the lab to work in the same job she had before this situation arose would be a reasonable thing to do.

In failing to accept the offer of re-employment by the Company, Ms. Frederickson failed to mitigate her damages. As a result, Ms. Frederickson was only entitled to damages from the date she was laid-off until the date she was recalled to work by the Company.

In essence, in Canada when an employee is terminated, if the employer subsequently offers re-employment, the employee must return to work to mitigate their damages unless the workplace is hostile or it would be degrading, humiliating or embarrassing to return.

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