When an employee is terminated without cause, the law requires the employee to mitigate his/her loss by diligently searching for alternative employment. In order to discharge this duty, the terminated employee must take steps that a reasonable person would take in the circumstances. Consequently, an employee who chooses to focus on personal preferences , such as for example, pursuing a new career, or taking a lower paying job, when the employee could have secured a comparable job, may fail to properly discharge the duty to migitage.
Schinnerl v. Kwantlen Polytechnic University, 2016 BCSC 2026, is a good example of a situation in which the plaintiff failed to mitigate her damages by turning down full-time work.
Ms. Schinnerl was terminated without cause by her employer, Kwantlen, on March 2, 2016 and was offered a ten-month salary continuation and benefits package. Under the terms of the package, if the plaintiff found alternative employment with another public-sector employer but the salary was less than what she made at Kwantlen, Kwantlen would pay the difference for the remaining salary continuance period.
Ms. Schinnerl got a full-time job at Douglas College, starting June 13, 2016 at a salary higher than what she earned at Kwantlen. However, Ms. Schinnerl then arranged to work part-time during the period June 13 – December 31, 2016 because she wanted to do her doctoral studies.
The issue that the court had to consider was whether Ms. Schinnerl, who had chosen to accept part-time employment because she wanted to complete her doctoral studies, had fulfilled her duty to mitigate.
Kwantlen argued that it should not have to pay the plaintiff the difference in salary for the remainder of the salary continuance period, because the plaintiff’s decision to work only part-time was unreasonable and inconsistent with her duty to mitigate her damages.
The court noted that the plaintiff was entitled to choose to work part-time in order to complete her studies and that a dismissed employee is entitled to consider her long-term interests. However, this did not mean that the defendant employer had to pay for it.
The court held that accordingly, Kwantlen’s obligation to provide the plaintiff with salary continuance ended on June 13, 2016 – the date on which the plaintiff had the opportunity to work full-time and mitigate all of her damages.