A recent decision reaffirms that employees have an obligation to return to work following a constructive dismissal to mitigate their damages where doing so would not be embarrassing, humiliating and/or degrading. In Gent v Strone Inc, 2019 ONSC 155, the Court found that an employee should have returned to work in mitigation after a constructive dismissal.

What Happened?

The employee was a 53-year-old Health and Safety Training Specialist. He had been employed by the employer for approximately 22.5 years.

In 2014, the employer had a significant decrease in its business. The decrease resulted in a number of layoffs including 22 permanent layoffs and three temporary layoffs.

The employee was temporarily laid off on October 15, 2015. At the time of the layoff, the employee was told that he would be recalled as soon as possible when business improved. This was communicated through an in-person meeting, and was explained in the layoff letter. The employer maintained the employee's benefits during the layoff period, and asked the employee to keep the employer informed of his availability and contact information so that he could be recalled as soon as possible. However, the employee was asked to return all of the company's equipment, including the company car.

Shortly after his layoff, the employee retained a lawyer and through his lawyer told the employer that he considered himself to be constructively dismissed.

The employer responded to the employee and explained that he might be recalled to work and that the company would update him on November 9, 2015. The employee responded to the company, through his lawyer, and claimed that the relationship had broken down and that he would not return to work.

On November 10, 2015, the company recalled the employee to work on substantially the same terms and conditions of employment. The employee refused to return to work.

Decision

In a motion for summary judgment, the Court found that the employee had indeed been constructively dismissed when he was temporarily laid off. This was because the employee's employment contract did not give the employer the right to temporarily lay him off and he did not consent to the layoff.

However, the Court sided with the employer in finding that the employee should have returned to work.

The Court confirmed that the test to determine whether the employee ought to have returned to work was "whether a reasonably objective individual in his circumstances would not have concluded that returning to work would be too embarrassing, humiliating and/or degrading".

The Court noted that the recall letter provided to the employee addressed the issues that may have been of concern to the employee:

  • The letter provided a return to work date but gave the employee the opportunity to discuss an alternative date;
  • The letter stated that the employer had no hard feelings or ill will towards the employee and that he was considered a valuable employee;
  • The letter stated that the employee would not suffer any reprisals for returning to work;
  • The letter acknowledged that the employee was not admitting that future layoffs were permissible; and
  • The letter invited the employee to contact the company to discuss any questions.

The Court found that a reasonably objective individual in the employee's circumstances would not have concluded that returning to work would be too embarrassing, humiliating or degrading. Furthermore, the employee had not given any evidence of how or why a return to work would be embarrassing, humiliating, and/or degrading.

The Court also rejected the employee's argument that because he had already commenced litigation against the employer when the recall offer was made, he did not need to return to work. The Court noted that although that is a factor to consider, it is not determinative and does not preclude a finding that the employee should return to work.

Because the employee had failed to mitigate by returning to work, he was only entitled to damages for the short period between the date of his lay off and the day he was recalled, a total of approximately $4,800.

Key Takeaways

This case confirms that employees have an obligation to mitigate their damages, which may include continuing to work for their employer even when they believe they have been constructively dismissed, particularly in a lay off scenario.

Further, even if an employee has started litigation against an employer, it is not too late to offer the employee his or her job back.

Employers should consider whether it is appropriate to re-offer an employee the opportunity to return to work following an allegation of constructive dismissal as it can greatly limit the damages and potential liability in litigation.