Recent cases have shed light on the lower limits prescribed by courts on an employee’s duty to mitigate, and on the higher burden on employers to prove that damages suffered during the notice period be reduced because of actual or potential mitigation income.
Given the time that it takes for an action to reach trial, employers going into a trial have the opportunity to compile comprehensive evidence of the employee’s complete mitigation efforts, full details of the economic and business conditions during the notice period, as well as all job opportunities that may have existed. This wealth of information should ensure that employers are more successful than ever.
In fact, although the obligation to mitigate remains a duty, it is not onerously imposed on a terminated employee. So too, it remains a defence available to the employer, but one whose burden of proof is so high that only the exceptional case will be successful.
Ed.: The above is but a small edited segment of an article published in Dismissal and Employment Law Digest and entitled “Mitigation: The Extent of the Duty and the Limitation of the Defence.”