In wrongful termination claim, court probes worker’s efforts to mitigate loss
Ontario's Superior Court of Justice recently dealt with a case involving a worker who claimed wrongful termination due to the closure of her employer's trucking and transport business, which was expedited by the economic impact of the Covid-19 pandemic.
In this case, the court had to determine whether the worker had advanced notice of the employer's closure, if she failed to mitigate her damages by refusing a comparable employment offer, and the appropriate length of the reasonable notice period.
The decision discussed the complexities of wrongful termination claims and the obligations of both employers and employees in such situations, particularly in the context of the unprecedented challenges posed by the global health crisis.
The worker, who had been employed with the trucking company for over 22 years, held various positions, including accounts receivable, dispatcher, and office clerk.
In November 2015, she accepted a role as a dispatcher, which came with increased responsibilities and a pay raise.
Throughout her tenure, the worker had reportedly been a dedicated employee, taking on additional duties as a dispatcher in 2015. The court heard evidence that as a dispatcher, she was responsible for recording orders from customers, making entries into the dispatch system, matching loads with drivers, scheduling loads, and maintaining contact with drivers.
She also assisted in calculating rates, mileage, material to be transported, delivery estimates, and driver settlements and pay.
According to records, the Covid-19 pandemic had a significant impact on the trucking industry, with many companies facing financial challenges due to reduced demand for transportation services. The worker's employer was no exception, with the number of transport drivers decreasing from approximately 10 in 2015 to just 4-6 by 2020.
Given her involvement in various aspects of the business, the worker was aware of the company's precarious financial situation. The court found that the worker "was clearly aware and on constructive notice of the impending and real risk of the business' closure."
Despite not having an exact end date, the worker had advance notice of the employer's impending closure.
In an effort to assist employees during the closure process, the employer reached out to another transport company to explore employment opportunities.
An interview was arranged for the worker, during which she was verbally offered a position as a dispatcher with ancillary office duties, maintaining her salary and hours of work.
The court noted the importance of this offer, stating that "an offer of comparable employment was extended by [the transport company] on December 29, 2020. [The worker] chose to reject it, to her detriment. Failure to mitigate has been proven."
The court considered the evidence presented, the legal principles surrounding wrongful termination and the duty to mitigate damages.
In its decision, the court stated that "the dispatch position offered [the worker] constituted comparable employment.”
The court also addressed the worker's desire to explore other opportunities and pursue online courses, noting that "while [the worker] wanted to 'see what's out there' and pursue on-line courses, it should not fall to the [employer] to fund her educational pursuits."
This sentiment reiterated the decision in Cimpan v. Kolumbia Inn Daycare Society, 2006 BCSC 1828, which held that "it cannot be the law that a dismissed employee can elect to take further training for self-employment and charge that to the employer, unless the employee cannot obtain alternate suitable employment."
Ultimately, the court concluded that "an offer of comparable employment was extended by [the transport company] on December 29, 2020. [The worker] chose to reject it, to her detriment. Failure to mitigate has been proven. [The worker] is not entitled to reasonable notice damages."
