Earl Chevalier was employed by Active Green + Ross for 33 years
and was a service centre manager for 18 of those years. On October
28, 2008, he was notified that he was being temporarily laid off
from his job at the end of the month. When Mr. Chevalier later
commenced an action for wrongful dismissal, his employer called
back stating that it had acted under the mistaken belief that it
could lay off Mr. Chevalier. Mr. Chevalier however refused to
return to work and decided to continue with this litigation.
The Ontario Superior Court of Justice held that Mr. Chevalier
was constructively dismissed when he was laid off by Active Green +
Ross on October 28, 2008. Accordingly, he was entitled to notice in
the range of 18 to 24 months. However, the Court found that Mr.
Chevalier failed to mitigate his damages when he refused to return
Where the employer offers the employee a chance to mitigate
damages by returning to work for him or her, the central issue is
whether a reasonable person would accept the offer to return to
work. However, the employee would not be obliged to mitigate by
working in an atmosphere of hostility, embarrassment or
Mr. Chevalier claimed that management had engaged in conduct
intended to "make his life miserable" in order to cause
him to leave his employment. The conduct alleged by Mr. Chevalier
included unfair criticism of his work, treating him in a demeaning
fashion and ignoring his contractual rights by requiring him to
work in Toronto more the 50 kilometres from home.
The Court found that Mr. Chevalier appeared to be very bitter
about his experience and as a result the significance of various
incidents covered in his evidence became magnified and distorted in
his mind over time.
Mr. Chevalier was failing to meet performance goals and comply
with company policies particularly on customer service. As a
result, more senior managers frequently provided him training and
assistance in order to improve. It was also clear from Mr.
Chevalier's employment agreement that he would be expected to
travel as part of his job. Mr. Chevalier was reassigned because of
the poor performance of his branch to another location where
management hoped that Mr. Chevalier would be more effective. He
would be working at a busier location with another manager who was
considered to have been successful in carrying out the
company's operating procedures.
The Court held that the employer's conduct was directed
toward making Mr. Chevalier a more effective contributor as an
employee of Active Green + Ross rather than making his life
miserable so that he would leave the company. The Court concluded
that a reasonable person would have returned to work and therefore
Mr. Chevalier had acted unreasonably when he refused to return to
work. As such, he had failed to mitigate his damages, and was thus
not entitled to any damages.
For a copy of decision in Chevalier v. Active Tire & Auto
Centre Inc., 2012 ONSC 4309, please visit: http://canlii.ca/t/fs4p6
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Back in July 2012, we covered "PVYW v Comcare" (No 2),  FCA 395, which concerned an employee in the HR department of an Australian government agency who was injured on a work-related trip to a country town in New South Wales.
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