The duty to mitigate is a common law principle requiring an employee to minimize their losses after being terminated. Practically speaking, this principle requires an employee to make reasonable attempts to find a new job.
Do I have to apply for and accept any job that comes up?
No. An employee does not have to accept a position that is not comparable in either salary or responsibility to satisfy the duty to mitigate. The analysis is this: “would a reasonable person in the employee’s position have accepted the job?”.
EXAMPLE
It may be unreasonable to accept a job that would be a demotion or significantly less remuneration. Determining whether a position is comparable requires the exercise of reason. Courts have suggested that the following factors ought to be considered when considering whether the job opportunities are comparable to the previous position: status, hours and schedule, location, and remuneration. For example, an office manager applying for and accepting a position as a server in a restaurant.
Courts have also recognized that employees need time to collect themselves after learning their employment has been terminated. Accordingly, the timeline of when employees begin their job search efforts can be reasonably delayed.
EXAMPLE
It may be reasonable to take a few weeks to adjust to the shock of termination, as well as time to prepare job application materials. Longer periods of time may also be reasonable given the context and circumstances of the employee such as mental health concerns. For example, an individual experiencing mental health issues following termination may have their health experts advising that they take time off to rest and address their health.
Final Notes
- Economic factors arising post-termination, such as those from the COVID-19 pandemic, can be relevant to mitigation if they impact the availability of equivalent employment.
- Terminated employees are entitled to pursue their own self-interests after their employment has come to an end, which may involve returning to school or pursuing other opportunities. However, this may have an impact on their entitlement to damages, particularly where the individual has had the opportunity to fully mitigate their damages and elects not to do so.
- The burden is on the employer to prove that the employee failed to mitigate. The employer must show:
- The employee’s efforts to mitigate were unreasonable in all aspects.
- Had the employee acted reasonably, they would have secured a comparable position. Employers are held to a very high standard, particularly at the second stage of this analysis.
- Each case is fact specific and will require an analysis of context and circumstances. If you have questions, please contact an employment lawyer.
How can an employee show that they have mitigated their damages?
Employees should always keep records of their job search following termination including dates and times of their efforts. The employee may need to show the jobs that were available at the time on job search engines such as Craigslist, LinkedIn or Indeed.com, the positions they applied for, and whether they were invited for an interview. A detailed job search log will assist the employee in demonstrating their attempts to mitigate.
