Employer's offer of return to work didn't cover entire time employee was off work
A dismissed British Columbia employee did not fail to mitigate her damages when she refused her employer’s offer of re-employment, the B.C. Court of Appeal has ruled.
Leah Ann Fredrickson was a registered dental technician assistant with Newtech Dental Laboratory in Vancouver. Over a period of more than eight years, Fredrickson worked for Newtech and had a good working relationship with Newtech’s owner.
In 2010 and 2011, Fredrickson’s husband fell ill and her son was seriously injured. Fredrickson was stressed due to these events and on April 27, 2011, she told Newtech’s owner she might not be back the next day. Though she didn’t give any more notice than that, in the past she had been able to take medical leave when she needed. Sure enough, Fredrickson took a medical leave of absence starting on April 28, but this time Newtech disputed her entitlement to the leave.
On July 11, Fredrickson’s doctor told her she would be fit to return to work on July 20. Fredrickson advised Newtech of the date and provided a doctor’s note.
When Fredrickson returned to work on July 20, Newtech’s owner told her she was being laid off due to insufficient work. The company gave her a record of employment (ROE) indicating she had been laid off and a letter of reference.
Fredrickson told Newtech she believed she had been dismissed and Newtech responded by asking her to return to work on Sept. 26. The company also said if she had been dismissed, she was obligated to accept the offer of re-employment as mitigation of her damages.
Fredrickson sued for wrongful dismissal on Oct. 18. Newtech offered to hire her back, one week later and again in early November, at the same position, salary, and benefits with compensation for lost wages up to the first re-employment offer in September. Fredrickson declined, saying Newtech’s behaviour had broken the employment relationship.
The B.C. Supreme Court found there were no barriers to Fredrickson accepting the offer of re-employment and it would have been reasonable for her to do so. By not accepting, she had failed to mitigate her damages stemming from the wrongful dismissal, said the court in awarding her compensation for lost wages from her dismissal up to the first re-employment offer of Sept. 26, 2011.
Fredrickson appealed the decision, arguing the trial court failed to consider bad faith on the part of Newtech and it wasn’t reasonable for her to return to the job.
The B.C. Court of Appeal found the trial court considered Newtech’s offers of re-employment to be efforts to “make whole” Fredrickson’s losses. However, the initial offers in September didn’t offer compensation for lost income up to that point, to which she was entitled for being wrongfully dismissed. The subsequent offers in October and November provided for compensation for lost pay but only up to the September offer, which was still less money than what she was entitled to for wrongful dismissal, said the appeal court.
“(The trial decision) fails to recognize that the earliest offer for compensation made in October still contemplated a loss of about one month’s income, or over eight per cent of Ms. Fredrickson’s annual income, that is, it was not a trifle,” said the Court of Appeal. “Further, it was made while Newtech was maintaining that Ms. Fredrickson was not dismissed, and so entitlement to any compensation was still an issue.”
The Court of Appeal also found Fredrickson’s trust in Newtech was eroded by the owner’s discussion with another employee that Fredrickson would be too embarrassed to return to work — Newtech had a small staff and he breached Fredrickson’s trust and confidence with this discussion. In addition, Fredrickson had concerns over returning to work given the lack of discretion and trust demonstrated by the owner, which made any chance of repairing the employment relationship slim.
