The duty to mitigate arrises under:
the common law but not ESA.
What is the duty to mitigate
The ee’s responsibility to find comparable work to lessen the damages owed by the er.
What is constructive dismissal?
When the er makes a fundamental and unfavourable change to the employment contract without providing reasonable notice and explaining the consequences of rejecting the change.
What types of changes to the employment contract constitute consecutive dismissal?
Changes to :
- compensation package
- job duties
- geographic relocations
- hours and scheduling
- untenable work enviro (ie. bullying)
If an ee has been constructively dismissed, does he have the duty to mitigate?
yes
What are the dilemmas of a constructively dismissed ee?
- continue working = condoning change
- resign, court could later find that the change was not fundamental enough.
How can an er avoid CD claims?
- negotiate fresh consideration
- get er’s consent
- give reasonable notice
- explain consequences of rejecting
- incl. a term in the employment contract that parts are subject to change (anticipated change is not breach).
What damages are ees entitled to in wrongful dismissal?
salary benefits company vehicle insurance bonuses, stock options pension entitlements
How can ers avoid wrongful dismissal claims?
- Hire intelligently with reference checks and comprehensive interviews
- include and update termination clauses.
- use probationary periods
- create a paper trail
- provide reasonable notice of changes
- best practices for just cause.
- Handle termination professionally
- Provide outplacement counselling.
- get a signed release willingly
Who has the burden of proof in wrongful dismissal cases?
ER
When must an ROE be issued?
within 5 days
To whom must the er report any pay in lieu of notice?
EI
