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Time spent in getting even is better spent getting ahead, and that’s
why Ontario judges will question you the wrongfully-dismissed employee
about your reasonable efforts to minimize employment-loss damages
suffered throughout days and weeks following your termination from work. In other words, the law doesn’t intend your reasonable
notice period to be an extended vacation, but rather a necessary period
of time in which to seek replacement employment at comparable working
conditions and salary.
In cross-examination, company lawyers defending even the most blatant
wrongful dismissal will hammer the unsuspecting plaintiff employee with
suggestions that their failure to find timely new employment stems not
from their wrongful termination, but rather from their inherent laziness
in refusing to apply for job ads, send out resumes, and otherwise
network for replacement employment.
Accordingly, the streetsmart employment lawyer will always introduce
solid written and verbal evidence substantiating the employee’s job
search, including lists of potential new employers contacted, copies of
application letters/forms completed, and diaries of new job interviews
attended. Who would have
thought all those F.O.A.D. rejection letters would ever come so handy?
Ultimately, it’s the employers’ burden to prove their former
employee’s failure to mitigate employment-loss damages suffered. More recently, the standard of mitigation outlined by Ontario
courts has been one of “reasonableness” - which in our experience
entails at least 3-4 new job application letters sent out every week by
the wrongfully-dismissed employee seeking to rob their former employer
of what’s usually the company’s desperate last defence against your
winning wrongful termination lawsuit.
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