Court Finds Employee's Job Search Efforts Fail To Satisfy Duty To Mitigate

As a general principle, employees who have been wrongfully dismissed have a duty to mitigate their damages by taking reasonable steps to secure comparable alternative employment. However, the onus is on the employer to prove a failure to mitigate and Courts have held that this onus is not easy to discharge. To do so an employer must show both that the employee failed to make reasonable efforts to find new employment, and that if the employee had made such efforts, new employment could have been found.

Notwithstanding this high burden, a recent decision by the Supreme Court of British Columbia is a rare example where an employer has succeeded in demonstrating a failure to mitigate, resulting in a reduced reasonable notice period.

Steinebach v. Clean Energy Compression Corp., 2015 BCSC 460, involved a 49-year-old employee who was terminated after 19.5 years of employment on a without cause basis. The plaintiff employee had started working for the defendant employer as a service...