Steve Steinebach was employed by Clean Energy Compression Corp.
as a salesperson. He had around 19 and a half years of service.
In early 2014, Steinebach was offered the newly-created position
of Senior Regional Sales Manager by the employer. He, however,
found the offer to be unsatisfactory and rejected it. In response,
the employer asked him to return all company property in his
possession or control and leave its premises.
After almost two months of unsuccessful negotiations, Steinebach
was provided with formal notice of termination. He responded by
suing for wrongful dismissal.
Decision at trial
At trial, the B.C. Supreme Court found that Steinebach had been
wrongfully dismissed and held that he was entitled to 16 months of
The Court, however, also held that Steinebach failed to mitigate
his damage or loss by seeking reasonably similar, alternate
employment. The Court was of the view that he had focused more on
his personal preferences and career objectives than was reasonable
in the circumstances, and had not taken the steps in mitigation
that he was obligated to take. The notice period was accordingly
reduced by the trial judge by three months.
The employer appealed, arguing that Steinebach was not entitled
to any damages at all or, alternatively, that the notice period
ought to be reduced by 12 months on account of the failure to
Decision on appeal
In a unanimous decision, the B.C. Court of Appeal allowed the
appeal and ordered a new trial on all of the issues.
The Court held that the trial judge erred in reducing the notice
period to account for the failure to mitigate. The notice period is
a substantive right arising from the employment relationship. A
failure to mitigate should be taken into account in the calculation
of damages flowing out of the breach of the contract of employment,
not with respect to the notice period itself. Although there was no
dispute regarding the finding that Steinebach had failed to
mitigate his damage or loss, the trial judge had not made any
finding with respect to the duration of the failure to
Based on the findings at trial, the Court of Appeal held that
Steinebach had ceased or significantly reduced his efforts to find
other comparable employment as of August 2014.
The Court also highlighted, however, that the trial judge had
made no determination regarding the point in time at which
Steinebach would likely have found work had he exerted reasonable
efforts to mitigate. In fact, there had been no evidence presented
on this point at trial. The Court stated:
It is likely that the judge
concluded that the respondent failed to mitigate for three months
or perhaps that had he pursued searching for a job in the natural
gas industry, acceptable employment would have been secured in 13
months. The difficulty is that there is no analysis to support a
three month failure to mitigate or the date at which employment
might have been secure. Both conclusions are mere speculation which
is not open to this Court.
Lesson for HR professionals
This case is important for HR professionals to consider when
faced with an allegation of wrongful dismissal where mitigation is
likely to be at issue.
Evidence should be introduced with respect to the duration of
the failure to mitigate. It will not do to simply point to the
dismissed employee's efforts in mitigation and claim those
efforts were inadequate. The evidence adduced at trial should
include the types of jobs for which the former employee was
qualified, job advertisements matching the employee's
qualifications and, ideally, the proposed start dates of the
In appropriate circumstances, it may be worthwhile to consider
retaining an expert to provide evidence as to when the employee
would reasonably have been able to secure other comparable
It is unlikely that an employer will be able to provide
definitive evidence that a plaintiff would have been able to secure
another job by a particular date, but it is clear that the courts
will expect as much assistance from employers as possible in order
to avoid pure speculation on any reduction in damages.
Previously printed in the LexisNexis Labour Notes
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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.
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