Many employees don’t know that they have what is called a duty to mitigate. That is, if you lose your job you are under legal obligation to do everything you can reasonably do to find another one.
When employees sue for wrongful dismissal, an employer’s first defense is often to claim that the employee has failed to mitigate his or her damages.
This means the court will require you to demonstrate that you’ve tried to find a job.
You can do this by showing that you’ve been: checking the newspaper and the classified adverts, doing any necessary networking, or submitting your resume to different potential employers. There’s any number of different ways that you can demonstrate this, but you have to show that you’ve made every reasonable attempt to find a job.
The key word is reasonable.
If you have an illness, or some other concern that makes it impossible to look for another job, you must show that this concern has prevented you from finding a job, and that as soon as this concern has been addressed you will continue looking for a job.
But what if employment conditions are poor and there are simply no jobs available?
The extent to which an employer can argue that you should be looking for a job that requires a lesser skill set is questionable. How reasonable is it for you to accept a lower paying position, or a less prestigious position with fewer duties?
The courts will generally require that you accept another job within reason, which may include slightly less pay or slightly less responsibility. You won’t, however, be required to find something that is dramatically below the level of what you’ve been doing.
It won’t, for instance, be expected that a chief executive officer (CEO) would take a frontline service position at the customer line. However, this person would still need to demonstrate that he or she was willing to take something other than a CEO position, like a middle management position, depending on the kinds of companies that have been solicited.
Tags: wrongful dismissal duty to mitigate mitigation severance package