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Jan 6, 2014

Time to get back on that horse

How long should a dismissed employee be allowed to mourn before making efforts to find new work?
    

By Jeffrey R. Smith

Losing a job can be a stressful, shocking and sometimes traumatic experience. It can take some time to get over it and get “back in the saddle again.”

But eventually, it has to be done so the individual can start supporting herself — and her family, if applicable. Reasonable notice of termination in cases of termination without cause helps people to deal with this transition period. There is also an expectation a dismissed employee has to make a reasonable effort within a reasonable time to find new work and mitigate her losses. But what is reasonable time and effort?

There have been many legal battles fought over the length of notice period and what the dismissed employee should be doing in terms of her mitigation efforts — which can include sending out resumés, checking job websites and skill improvement training. Where pay in lieu of notice is paid out in instalments, the employer would obviously like the employee to find new work as soon as possible, as it may mean the employer would be able to stop payments. It could also be positive for the dismissed employee, as the sooner she finds a job, the more secure she can feel.

The Quebec Court of Appeal recently released a decision in a case involving an employer who shut down its operations and dismissed several employees, including one who was 75 and had worked for the company for 38 years. The employer offered 2.5 months’ notice and a job at another location. The employee refused the job offer as he deemed it too far to commute at his age.

The Quebec Superior Court found the employee would be entitled to 16.5 months’ notice, except for the fact he failed to prove his refusal of the job offer was reasonable. That, along with his failure to look for other work, was a failure to mitigate his damages, said the trial court.

The Court of Appeal changed the reasonable notice period to 10.5 months. The appeal court found the employee’s refusal of the job offer, given his age and the distance, was not unreasonable. It also found the employee would likely not have found alternate employment, regardless of the extent of his job search efforts.

Every circumstance is different, as in this case the termination of a 75-year-old employee means mitigation is unlikely. In addition, consideration had to be given to the fact that the shock of losing a job held for 38 years would require some time to adjust and to let it sink in. Even for a younger employee — though anyone employed for a comparable amount of time won’t be very young — it can’t be expected that the employee will quickly start efforts. A reasonable person would allow that an employee dismissed in such circumstances would probably need a longer time before she ramps up job search efforts.

So what is a reasonable time to expect someone to get back on the horse? How much should it correlate to factors used in determining reasonable notice — such as length of service, the job market and the importance of the employee’s position?

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. He can be reached at Jeffrey.r.smith@thomsonreuters.com or visit www.employmentlawtoday.com for more information.

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