Whether employee has to accept continuation of similar employment

Chong v. Nuance Global Traders (Canada) Inc. 2002, 16 C.C.E.L. (3d) 243 (B.C.S.C.).

The British Columbia Supreme Court held that a 31-year old non-managerial systems analyst who had been employed for nearly five and three quarter years was entitled to reasonable notice of five months. Upon his dismissal as a result of reorganization, the employee was provided with five weeks’ pay and was offered an additional seven weeks’ pay which he declined.

On the same day, he was offered employment for four months as a project manager, which would have provided a greater salary per month and bonus for completing the project, and was asked to indicate his acceptance by signing and returning the offer after the weekend.

On the Monday following, the employee requested amendments, including a request for more money and expenses. The employer took the position that his request for amendments constituted a counter-offer and, accordingly, in law, a rejection of the offer. Therefore, the employer took the position that the employee’s rejection constituted a failure by the employee to mitigate. It was the employer’s position that the employee should have accepted the written offer of temporary employment in an effort to mitigate his loss. The court concluded it was not unreasonable for the employee to want to discuss matters further with his employer. He was not told the offer was a “take it or leave it” proposition. After some discussion, the offer of further employment was withdrawn.

The court concluded it was not unreasonable in the circumstances for the plaintiff to further explore the nature and conditions of the new temporary project he was being asked to manage. The work involved different duties with extensive travel.

The court found that the onus is on the employer to show the plaintiff did not follow a reasonable course of conduct and failed to mitigate his damage by unreasonably declining further work with his employer. The court found the employee did not reject the employer’s offer which was, ultimately, withdrawn by the employer. As negotiations were ongoing when the offer was withdrawn, the plaintiff was found not to have failed to mitigate.

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