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Evidence needed to establish that dismissed employee has not satisfied the duty to mitigate

Jurisdiction: - British Columbia

In Marshall v. Old Meets New Furniture Ltd. dba Stokes Furniture, 2009 BCSC 748, the BC Supreme Court discussed the evidence required to prove that an employee has failed to take reasonable steps to mitigate her loss in relation to a wrongful dismissal matter. The court also discussed the impact of a depressed economy on the notice period. 

Background

The employee was 46 years old and had seven years of service at the time her employment was terminated in June 2007. She had been manager of a retail furniture store, earning approximately $65,000 per year.

The employer alleged at trial that it had cause to terminate the employee based on poor job performance, dereliction of duty, and insubordination. However, at the time of dismissal it had provided the employee with seven weeks pay in lieu of notice pursuant to the Employment Standards Act and a positive letter of reference.

Notice Period

The court found that the employer did not have cause to terminate the employee and awarded her a notice period of eight months.

In doing so, the court stated that it would take into consideration if a termination occurs in a depressed economy, but not give undue emphasis. In this case, however, the court stated that there was no evidence that the termination had occurred in such an economy.

Evidence Regarding The Duty to Mitigate 

The employee did not secure new employment until one year after her employment was terminated. Her evidence was that she had looked in the newspaper and on the Internet for employment opportunities and had only applied for work at two places, neither of which was a furniture retailer.

In support of its argument that the employee had not satisfied the duty to mitigate, the employer provided an affidavit from a person (“RL”) who was a sales representative for a number of furniture wholesalers.  Among other things, RL’s evidence was that:

  1. he had advised the employee that a particular retailer was interested in speaking to the employee about a possible position but that the employee had said she was not interested;
  2. at the time the employee was terminated “the retail furniture business was doing very well in Victoria and in my opinion there would have been a number of sales positions available for an experienced sales person.”

In relation to the first point, the court stated that it was not unreasonable for the employee to not follow up because in her view the retailer had a poor reputation.

In relation to the second point, the court noted that:

  1. it was an expression of RL’s opinion;
  2. it did not address the availability of positions involving sales and management;
  3. the absence of detail renders it difficult to ascribe any significant weight to the opinion;

Most significantly, the court concluded, RL never stated that:

“…he knew of actual positions being available. The absence of admissible evidence as to other job openings or that employers were advertising positions to be filled renders it impossible to give any weight to [RL’s] opinion. For example, there was no evidence of newspaper ads to demonstrate existing job opportunities (para. 47)