After dismissing 21 year employee, employer provided employee with minimum notice entitlements under Employment Standards Act, 2000 (Ont.) plus access to career transition counselling
By: Howard A. Levitt ; Editor: Stephanie Wiebe
EMPLOYMENT — Wrongful dismissal — Mitigation
— Employer was insurance company with whom
employee had held number of claim adjustor positions
over 21 years and three months — Employee was
dismissed at age 52 while employed in intermediate
level position adjusting automobile insurance claims
exclusively — Employer provided employee with
minimum notice entitlements under Employment
Standards Act, 2000 (Ont.) plus access to career
transition counselling — Employee brought action
against employer for damages for wrongful dismissal
— Employee brought motion for summary judgment
— Motion granted — Reasonable notice period was
16 months’ compensation plus benefits and RRSP
contributions, less payments received from employer
under Act and subject to trust in favour of employer
for any amounts earned during remainder of notice
period — Reduction of 10 per cent for failure to
mitigate as submitted by employer was not reasonable
or warranted in circumstances — Efforts of employee
in searching for comparable employment had been
reasonable in all respects — There was no merit in
employer’s position that employee had not diligently
pursued comparable employment for approximately
five weeks following her termination since authorities
indicated employee was not expected to immediately
begin search for new job — Restricting job search to
areas within reasonable commute time in large
employment marketplace with increasingly onerous
commute times did not render employee’s job search
unreasonable — Employer did not establish that any
positions suggested by employer to which employee
had not applied would have resulted in comparable
employment had she applied.