Mitigation – A duty to act in your own professional interest


Time Published on December 30, 2016 User Stringer LLP Admin

When no work is available in a particular field, dismissed employees may undertake reasonable mitigation efforts by pursuing re-training to work in different areas. However, a recent case illustrates that courts will not force employers to fund educational endeavors for dismissed employees who are perfectly capable of finding work in their current fields.

The plaintiff in Schinnerl v. Kwantlen Polytechnic University was 48 years old, and was in the process of completing a PhD in education and immigration policy at the time of her dismissal. She had worked for the defendant, a university, as Director of Public Programs and Exchanges for 9 years, and was terminated without cause due to restructuring.

Prior to her dismissal, the plaintiff had requested and received a one year educational leave from to pursue her doctoral studies, pursuant to the university’s Educational Leave Policy. She was dismissed upon returning from that one year leave.

The university offered the plaintiff salary continuation for 10 months, on the condition that she conduct reasonable job searches and advise them if she obtained new employment during the salary continuance period. The offer specified that if she obtained new employment that paid less than she had been making at the university, the university would pay her the shortfall during the 10 month period.  

Three months after her dismissal, the plaintiff accepted the position of Director of Global Engagement at Douglas College. Although she had been offered a full-time position, the plaintiff arranged with the college to work on a part-time basis for the first three months of her employment in order to complete her PhD.

Because the plaintiff had declined a full-time job offer for those months, the university refused to pay her the difference between her part-time salary and her previous salary with the university, and claimed that she was obligated to accept the full-time hours to fully mitigate her damages. The plaintiff argued that it was reasonable for her to work part-time for a few months to complete her PhD, which she had started with the support of the university.

The Decision

The Court noted that the plaintiff was entitled to take on part-time work in order to finish her PhD; however, it found that that was a separate question from her duty to mitigate. The fact that her former employer had previously allowed her to take a one year leave of absence to pursue graduate studies was a generous allowance, but did not change the fact that the plaintiff was responsible for mitigating her damages.

The Court noted as follows,

I can agree with the plaintiff that a dismissed employee is entitled to consider her long-term interests but I do not agree this means her former employer is required to pay for the interests of the plaintiff at issue here. Nor do I agree that the plaintiff is entitled to be placed in the best possible position in relation to her long-term career objective following her dismissal

The duty to mitigate is not a duty to act in a manner that will reduce the claim against a former employer. It is a duty to take the steps a reasonable person would take in her own interest to maintain her income, and position in her industry, trade, or profession. As such, the plaintiff failed in her duty when she initially rejected the full-time position, and the university was not liable to pay her the difference between her previous salary and her new part-time earnings.

There are some situations in which pursuing further studies will not amount to a failure to mitigate.  For example, courts will not necessarily find a failure to mitigate where a dismissed employee decides to train for another type of work when no positions are available in his or her current field. However, in this case, a full-time position was open to the plaintiff in her field, and she rejected it in favour of a part-time position for her own reasons.  The Court ruled decisively here that it was not appropriate to require a former employer to finance an otherwise perfectly valid personal choice. 

Tag employment law,  wrongful dismissal litigation


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