Given ongoing collapse of multiple major industries, issue may become relevant in near future
“A person's employment is an essential component of his or her sense of identity” — Dickson CJ
We know that a dismissed employee has a duty to make reasonable efforts to seek new work, and many employers latch onto that and assert that the employee would have found work if they wanted to.
Sometimes, the individual will start looking in a completely different field; can a decision to attempt a career change count as appropriate mitigation? In Okano v Cathay Pacific Airways Limited, the Supreme Court of British Columbia said “no”.
A wrongfully dismissed employee has an obligation to look for suitable employment with similar hours, pay, and status as the role from which they were wrongfully dismissed. The task is not to locate a job, only to look for one: a relatively low bar. Failing to do so can lead to drastic consequences: in a recent decision of the Small Claims Court of Ontario, Patel v Crimp Circuit (unreported), the plaintiff’s failure in the duty to mitigate led to the court reducing the award of reasonable notice from 14 months to five.
In Okano, the plaintiff, a 61-year-old employee with 35 years of experience in the airline industry, was dismissed without cause in October 2020 (effective in December 2020). The plaintiff had enjoyed her career with the defendant, and the court, channeling Chief Justice Dickson, noted that the plaintiff’s work was a “significant feature of her identity”.
Despite the plaintiff’s affinity for the work she had performed for the airline, upon being dismissed, she decided that it was a good time to pursue a career change. The evidence showed limited mitigation activity until June 2021, when she began applying for jobs outside of the airline and travel industry. On her examination for discovery, the plaintiff confirmed that she did not “have it in me anymore” to work in this industry, and decided to adopt a new career path - entirely away from the airline and travel industry.
The plaintiff was still unemployed at the time of the trial (May 2022). The defendant presented evidence of there having been ample opportunities in the airline and travel industry for an individual with the plaintiff’s skillset. The court accepted this evidence, finding that it was “incumbent” upon the plaintiff to look for roles within the industry where she had spent her career. The court also found that if the plaintiff had applied for these roles, she may have had a new and similar position by as soon as February 2021.
The court found that the plaintiff’s attempt to change careers was a failure to adequately attempt to mitigate her losses and reduced its award of reasonable notice by three months. It is important to note that the employer produced evidence of jobs that the plaintiff was well-suited for; we often have employer clients baldly claim that “there are lots of jobs out there”, but in and of itself, that will not have any impact.
In this case, there was evidence of jobs available in the plaintiff’s field, so changing fields worked to her disadvantage. Not considered in Okano would be the plaintiff’s obligations if the reverse was true, and the plaintiff’s chosen field was bereft of opportunities. In that circumstance, would the plaintiff’s attempts to locate employment outside of their career path have been the correct route?
The holding in Okano may be too fact-specific, and if the facts were different, a reasonable approach to mitigation may well require expanding the scope of one’s job search. Given the ongoing collapse of multiple major industries, this issue may become relevant in the very near future.
One thing remains certain — a failure in the duty to mitigate will continue to have a significant impact on an employee’s entitlements at law. As is often the case, evidence will be critical in these cases. If a plaintiff chooses to change careers, they should be prepared to demonstrate the reasonableness of their decision in relation to the job prospects.
Conversely, employers who want to allege a failure to mitigate should produce evidence of jobs that the individual could have applied for with a reasonable chance of success.