There was a job opportunity for the terminated employee.
He didn't pursue it and he didn't provide a reasonable
excuse. His claim for wrongful dismissal damages was
Rod Koenig had been hired by Brandt Tractor in 1987 and was
terminated 22 years later. He was given 9.5 months of
working notice in January 2009, finished work in October 2009
and didn't start new employment until April 2010.
But in June 2009 he was approached by a former work colleague,
Mr. Jones, about a comparable position. Mr. Koenig
expressed no interest and did not pursue the opportunity. Mr.
Jones considered him to be ideal for the position and would have
hired him if he was interested.
Brandt Tractor claimed that Mr. Koenig failed in his duty
to mitigate. He responded by swearing in an affidavit that he
had reservations about working with Mr. Jones and referred to
billing practices he didn't approve of. Brandt Tractor
responded with affidavit evidence from Mr. Jones and from the
Branch Manager for whom both Jones and Koenig had
The decision makes it clear that a former employee cannot
be forced to work where he prefers not to work, but when is seeking
damages from his former employer he has a duty to mitigate.
he must act reasonably and take
reasonable steps to maintain his income, and
there must be a "constant and
assiduous application for alterntive employment".
The judge concluded:
The evidence before the court of the
plaintiff's reason is no more than a vague
"disapproval" of Mr. Jones' billing practices.
Mr. Jones was highly regarded by the Branch Manager. Mr.
Koenig does not allege dishonesty. He simply "had
reservatons" about working with him. On the evidence I
conclude Mr. Koenig did not act reasonably when he decided not to
pursue employment at Freightliner. Put another way, the
evidence establishes that Mr. Koenig failed to mitigate his
This failure to mitigate is fatal to
the plaintiff's case. If he had taken the job, as he
reasonably should have, then he would have suffered no loss of
The claim was dismissed with costs awarded to Brandt
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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