A Rare Success For Employers: An Employee's Failure To Mitigate

It is well-established that employees have a legal obligation to minimize damages post-termination by attempting to find comparable alternative employment. If an employee brings a wrongful dismissal action, employers will often include an allegation that the employee failed to mitigate their damages as part of their defence. The onus for proving a failure to mitigate rests on the employer. It must be shown that:

the employee failed to make reasonable efforts to find new employment, and that if reasonable efforts had been exerted, other employment would have been successfully secured. The burden is exceptionally high for an employer to prove an employee's failure to mitigate. Rarely do Courts find that a wrongfully terminated employee failed in his or her duty to mitigate; however, in Steinebach v Clean Energy Compression Corp, 2015 BCSC 460, the employer was successful in proving the employee had failed to mitigate his damages.

In that case, the employee was terminated without cause after 19.5 years of employment at Clean Energy Compression Corp, a...