What is the test for a dismissed employee to mitigate their damages by returning to work for the same employer?
Ontario, Canada
The following excerpt is from McLean v Dynacast Ltd., 2019 ONSC 7146 (CanLII):
Both parties are ad idem that the seminal case on this issue is Evans v. Teamsters Local 31, [2008] SCC 20. In that case the court held that any consideration of an employee’s duty to mitigate must include an analysis of whether the relationship has been damaged. At paragraph 28 of the decision the court found that as a general rule, “It will be necessary for a dismissed employee to mitigate his or her damages by returning to work for the same employer.” However, the court went on to add a significant qualification to this rule at paragraph 30 where it held that an employee should only be required to serve out the notice period in the new position proffered by the employer “where there are NO barriers to re-employment” (emphasis added).
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