Some employee resignations are clear-cut; the employer is provided with a letter of resignation, with an effective date, a signature etc.

However, what about when an employee shouts “I quit!” and storms out of the office, expresses a general dissatisfaction about their job, or that they have received another job offer? 

Continue Reading Employee Resignations: When is a resignation valid? 

Most employers know they have a legal duty to accommodate an employee with a disability. But what exactly is the scope of that duty and what does the accommodation include?

This post will set out the basics.

Continue Reading Employment Law 101: Accommodating a Disability

In the rapidly evolving landscape of tech, Generative Artificial Intelligence (GenAI) is becoming a central player, especially in sectors like customer service, content creation, and human resources.

While GenAI offers groundbreaking efficiencies and capabilities (and excites the sci-fi nerds in all of us), it also poses unique challenges, particularly when it comes to biased outputs. This issue, often summarized by the old adage “garbage in, garbage out,” reflects the reality that AI systems can only be as unbiased as the data they are trained on.

Continue Reading The Perils of Bias in Workplace GenAI

In the world of employment law, terminations tend to steal the spotlight. But what about when the employee is the one ending the employment relationship?

Here is an overview of the law of resignation, and what employers need to know when they receive an employee’s “two weeks’ notice”. 

Continue Reading Employee Resignations: The Basics

Employers often wonder how to handle requests for leaves of absence from employees.

This requires understanding the various options available depending on the terms of employment and benefit plans, but also obligations under employment standards legislation and human rights legislation. This balancing act can become burdensome and lead to liability for employers if mishandled. 

Continue Reading An Employee Has Requested a Leave of Absence, Now What?

In many industries right now, businesses are fighting not just for clients, customers, and market share but to attract and retain good talent.

If you’ve managed to recruit an employee from a competitor – congrats! But before you put together the onboarding package and schedule the welcome lunch, here are a few steps to take to avoid any potential legal headaches: 

Continue Reading What to know before you hire from a competitor?

Attention employers and job seekers! As a result of some incoming changes to the Employment Standards Act, job postings are about to look different!

Ontario’s Working For Workers Four Act received Royal Assent on March 21, 2024. And now, a brief interlude on Ontario’s law-making process in case you’ve forgotten: Royal Assent is the last step in the process that makes a Bill law.

Continue Reading Attention Employers: Legal Changes Coming to Job Posting Requirements 

Mitigation issues can save an employer months of termination pay and/or gut your termination case, depending on whether you are the employer or employee in a dispute.

But what exactly is mitigation? This post sets out the basics.

What is Mitigation?

In Canadian employment law, mitigation refers to the legal obligation of an employee who has been terminated or laid off to make reasonable efforts to find comparable employment. This principle of “mitigating damages” is used to reduce the potential compensation or termination package an employer may be required to pay.

For instance, if an employee is terminated and they find a new job within a short period, the courts will set off the new income from the amount that previous employer may be required to pay because the employee has mitigated their loss of income.

What Counts as Mitigation?

What constitutes “reasonable efforts” and “comparable employment” can vary greatly depending on the circumstances, such as the employee’s age, education, experience, and the availability of suitable jobs.

Mitigation includes:

1. Actively seeking new employment: This could involve applying for jobs, attending interviews, networking, etc.

2. Accepting a reasonable job offer: If a comparable job is offered, the employee is generally expected to accept it.

3. Undergoing retraining or upgrading skills: In some cases, the employee may be expected to take courses or undergo training to improve their employability.

4. Documenting job search efforts: The employee may need to provide evidence of their job search efforts, such as records of job applications or interviews.

5. Self-employment or freelance work: In some cases, efforts to start a business or work as a freelancer may count as mitigation.

If the employee fails to mitigate their losses, it may result in a reduction of their wrongful dismissal damages.

How does Mitigation Impact Your Employee’s Termination Package?

In Canada, when an employee is terminated without cause, they are generally entitled to a termination package. The impact of mitigation on an employee’s termination package can be significant. If the employee finds a new job quickly, the amount of their termination package may be reduced. This is because the purpose of the package is to compensate the employee for their loss of income during the period of unemployment. If the employee is able to mitigate their loss by finding new employment, their need for compensation is reduced.

For example, if an employee is entitled to a termination package that includes 6 months of pay, but they find a new job after 2 months, they may only receive 2 months of pay from their termination package. The remaining 4 months would be considered mitigated by the new employment.

However, it’s important to note that the duty to mitigate does not require the employee to accept any job that comes along. The new job must be comparable to the one they lost in terms of pay, location, hours, and other factors.

In some cases, the employment contract or the termination agreement may specify whether and how the termination package will be affected by mitigation. Also, it’s important to note that in all cases no employer can pay out less than what is required under their applicable employment standards legislation, regardless of any contractual or termination package terms.

When proceeding with a termination, employers will want to keep this important legal concept on their radar and include mitigation terms within the termination settlement documents.  Need a hand in contract drafting, reach out to our team today! 

Employers have another reason to worry about their termination clauses. 

Following the case of Waksdale v Swegon North America Inc., 2020 ONCA 391, Ontario courts have placed increased scrutiny on termination clauses with very few surviving.

Continue Reading Another Termination Clause Bites the Dust