Worker had ‘broad array’ of skills but didn’t look for work

Bauer v. Seaspan International Ltd., 2004 CarswellNat 3740, 2004 FC 1441 (F.C.) John Bauer was hired as a labourer for Seaspan International Ltd. in August 1996. He initially earned $19 per hour, an amount which was bumped to $21 per hour when he was promoted to the position of lead utility man. He was subsequently demoted to his old position but his pay remained at the higher rate.

Bauer was dismissed in March 2001. He sought to be reinstated on the grounds he had been unjustly dismissed. An adjudicator ruled in his favour and assessed damages at $101,400.

This represented his lost wages from the time of dismissal until his reinstatement in October 2003. The adjudicator reduced this award to $40,500 (for one year’s salary) due to his failure to mitigate his damages. Bauer appealed the reduction.

The adjudicator found Bauer’s documentary evidence of his job search to be “very poor” and his explanation for this “not persuasive.” Bauer had not obtained a single job interview in more than two years, which he claimed was because Seaspan had not provided him with a reference letter.

The adjudicator rejected that argument, noting that checking references is generally one of the last steps in the hiring process. A determined effort, the adjudicator found, would have yielded at least some initial interviews since Bauer had experience as a logger, millworker, bridge and building worker, carpenter’s helper, truck driver, landscaper and handyman.

“He brings a broader array of skills to the workplace than most labourers,” but had never walked onto any job site and asked for work.

“I find Mr. Bauer’s efforts at mitigation to be completely inadequate,” the adjudicator decided.

In appealing the ruling, Bauer’s counsel argued the adjudicator had been patently unreasonable, that he didn’t have the discretion to reduce the award as he did, and he had failed to appreciate the requirement that it is the employer who bears the legal responsibility to prove, with evidence, that someone has failed to mitigate damages.

The federal court rejected Bauer’s appeal. An adjudicator, it ruled, has a right under s. 242 of the Canada Labour Code to “make whole” the losses caused an employee by an unjust dismissal.

This includes reinstatement and/or a monetary award on the basis of equity that will remedy the situation. But the employee’s duty to mitigate losses is not lessened by the employee having been unjustly dismissed.

As for the burden of evidence, the court ruled Seaspan is not required to provide specific evidence of jobs that Bauer could have filled. Bauer’s own testimony, under cross-examination, revealed he had not gone to construction sites to seek work and that he had not applied for any landscaping positions advertised in newspapers, even though he had the skills and experience for both.

In this case, ruled the court, the adjudicator had sufficient evidence to make an assessment of Bauer’s efforts to mitigate his damages and had made a reasonable determination that he had not done so.

The court rejected Bauer’s appeal, but did not award costs to Seaspan because it had been responsible for a delay in the final settlement of Bauer’s original unjust dismissal claim.

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