Who said you can never go back? While it's a phrase popular
in country ballads, it is generally poor advice for an employee
invited to return to an employer that just fired them under the
Earl Chevalier was the service manager of a Speedy Muffler
location in Niagara Falls, Ont., that was purchased by Active Tire
& Auto Centre Inc. To reduce its expenses, Active laid off
Chevalier, who was 55 years old and had been employed by Speedy for
33 years, and paid him just four weeks' severance.
Within two weeks, Chevalier had retained counsel and issued
a Statement of Claim for wrongful dismissal to Active Tire.
Not surprisingly, Active had obtained no legal advice and
believed it could lay Chevalier off without consequences. Only
after being sued did the company seek legal advice.
It quickly apologized and offered Chevalier his job back on
the same terms he had with Speedy. Chevalier rejected the
offer claiming he had no obligation to return. He also said he had
been harassed before his dismissal and that Active's offer to
return was disingenuous, having been made only after he had sued.
That, he said, made the workplace poisonous and returning would be
The court noted that wrongfully dismissed employees have a
general duty to mitigate their losses by finding comparable work.
Clearly his previous job was just such work.
"The salary offered was the same, the working conditions
were not substantially different or the work demeaning, and the
personal relationships involved are not acrimonious," the
Active's decision to lay off Chevalier was an innocent
mistake and its previous performance management of Chevalier
was not harassment. Nor did the lawsuit "create a poisonous
work environment," it said. Therefore, Chevalier should have
accepted Active's offer.
This case holds some valuable lessons for employers and
Employees must understand the duty to mitigate and be ready to
consider an offer to return.
Employers faced with dismissal lawsuits should consider whether
it is desirable and appropriate to invite the employee to
If the employer invites the employee back, it should apologize
if there has been any error or misunderstanding and the offer
should be made quickly and courteously to avoid the employee
alleging the employer created a poisonous work environment.
Any offer to return should be on the same terms and conditions
as those that existed previously.
If the constructive dismissal resulted in any damages by the
employee, such as a loss of income, the employer should offer to
cover such damages.
Requiring an employee to return to work can be a powerful
weapon when a dismissal has been mishandled. It should not be
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