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 technician in the compressed natural gas (CNG) industry and held a number of positions during his career. At the time of termination, the employee was the Vice President Business Development Canada, which was largely a sales position with no supervisory responsibilities but required specialized skills and knowledge of the CNG industry.

Taking into account the plaintiff's age, length of employment, his degree of specialization and that for much of his employment the plaintiff held senior level positions that carried job duties with a high degree of responsibility and importance, the Court held that the plaintiff should be awarded 16 months notice.

The Court then turned to the issue of mitigation, specifically whether or not the plaintiff had adequately mitigated his damages by searching for reasonable alternative employment. The plaintiff's evidence was that, after being terminated on May 2, 2014, he did not start his search for work in the gas or energy industry until mid-June 2014, and by the end of July 2014 had decided to pursue a career in financial management instead. Thereafter, the plaintiff focused on completing the Canadian Securities Course during August and September 2014, and was ultimately offered a Sales Assistant position at CIBC Wood Gundy in December 2014. The defendant filed responding evidence showing available employment opportunities it argued were similar to the plaintiff's prior position.

The Court reviewed broad-ranging decisions on the issue of...