You make the call
This instalment of You Make the Call involves a dispute over reasonable notice damages and a worker’s efforts to find alternate employment after his dismissal.
Brian Koski, 38, was a customer success manager in Kelowna, B.C. for TeraGo Networks, a Toronto-based telecommunications and information technology company. He initially was hired in July 2006 by a similar company called RackForce, which TeraGo acquired in March 2015. On Jan. 1, 2017, TeraGo amalgamated RackForce’s business with its own and Koski became an employee of TeraGo.
Koski’s role was to foster and maintain relationships with TeraGo clients. He supervised six employees across Canada, but he wasn’t involved with hiring and firing them or setting budgets and work schedules.
On Nov. 20, 2019, TeraGo terminated Koski’s employment without cause and provided him with the minimum pay in lieu of notice as established in the B.C. Employment Standards Act for his 13 years of service with RackForce and TeraGo.
Koski didn’t begin applying for other employment until more than six months after his dismissal from TeraGo. He also didn’t try to upgrade his skills or hire a head hunter to help with his search.
Koski remained unable to secure any job interviews for several more months to the point that, by the anniversary of his dismissal, he had yet to interview for a position.
Koski filed a claim for wrongful dismissal against TeraGo. TeraGo claimed that Koski was not entitled to the full amount of damages in lieu of reasonable notice because he didn’t take reasonable steps to mitigate his losses — no steps at all for six months, followed by restricting his search to local areas that limited his employment opportunities and failing to upgrade his skills. The company argued that one of its employees conducted a search of “relevant job postings in the month of November 2020” and found some opportunities that could have worked for Koski.
Koski responded that he was shocked by his dismissal and it took some time to recover. He said he took about four months to revise his resumé, and when he started looking for alternate employment, his search involved reviewing Internet job postings multiple times per week, inquiring with friends and acquaintances about work and sending expressions of interest to positions for which he met the qualifications. He submitted his first application for work in March 2020 and followed with several more after that, but none led to interviews.
You Make the Call
Did the worker fail to mitigate his damages after his dismissal?
OR
Did the worker make sufficient efforts to find new work?
IF YOU SAID the worker made sufficient efforts to find a new job, you’re right. The court noted that the obligation to mitigate damages involves taking reasonable steps to find work and is not measured by the number of job interviews or job offers received — in fact, there is no requirement to secure either, said the court.
In addition, the court found that “taking reasonable steps to mitigate damages does not require Mr. Koski to incur the cost of hiring a head-hunter or to upgrade his skills in the circumstances of this case,” as there was no indication that Koski’s experience and skills weren’t enough for comparable employment.
The court also noted that the onus was on TeraGo to prove Koski failed to mitigate his damages. However, the company didn’t present any evidence that Koski had limited his job search effort to his local area or any evidence that potential employees wouldn’t require him to relocate.
As for TeraGo’s claim that one of its employees found several opportunities in a November 2020 job search, the court dismissed it as hearsay evidence that provided no explanation of the search criteria used, what qualifications there were for the opportunities that the employee found and was too long after Koski’s dismissal to help determine what was available during the notice period.
TeraGo was ordered to pay Koski 13 months’ salary, benefits and bonus payments minus the statutory minimum it had already paid — splitting the difference between Koski’s claim for 16 months and TeraGo’s position that 10 months was appropriate.
For more information, see:
- Koski v. Terago Networks Inc., 2021 BCSC 117 (B.C. S.C.).
