How far – literally – does a dismissed employee have to go to find a new job?
A key concept in the area of wrongful dismissal law is mitigation: following dismissal, an employee has a duty to mitigate her losses by searching for new employment. In fulfilling that duty, she must act “reasonably”. But what does “reasonably” mean in this context? Does the law require an employee to relocate in order to find work?
The good (and bad) news is that whether an unemployed worker must move to fulfill his duty to mitigate depend on the facts of the employee’s particular case. Specific factors that Canadian courts have considered in the relocation context include:
- The age and/or health of the employee
- Family circumstances or responsibilities
- Community attachment or cultural ties
- Financial considerations
- Relocation norms or customs within a given industry
For example, in one Ontario case involving a dismissed engineer, the court found that the employee’s refusal to move to Ohio to join another division of the defendant employer was reasonable, based on his age (54), long association with his hometown of Cambridge, and his decision to start his own consulting business. Contrast that case with a BC judge’s conclusion that a dismissed engineer failed to act reasonably when he refused to move from Vancouver to Calgary to accept a job offered to him at the time of dismissal. The BC court was persuaded by the fact that it was “customary” for engineers to be prepared to relocate, and by the lack of any reasonable prospect of employment in Vancouver.
These opposing decisions are a good illustration of how the law in this area is mixed. On one hand, the wide range of factors courts have accepted in refusing to impose a duty to relocate suggests that employees will generally be expected to mitigate only within their own backyards. On the other, in a prolonged era of economic flux and uncertainty, courts may become more inclined to expect employees to “go the distance” in their search for new employment.
If you have been recently dismissed and are feeling pressured to look for employment outside of your hometown, we encourage you to seek the assistance of an experienced employment lawyer. He or she can advise you on how a court may view your mitigation obligations, given your particular circumstances.
Are you an employee or employer with questions about a dismissal or other employment law matter? Email us!
