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Beament Hebert Nicholson LLP Blog

Employment Law Series – Part 5

by Julian Hutchinson

The following is part, Part V, in a series of blog postings on employment law, focusing on issues involving wrongful termination and remedies available.

Part V – Damages

An employee has a positive legal obligation to try and find alternate employment, that is, to minimize their damages. This does not mean that an employee must accept a job that is substantially different or a job that pays significantly less. The obligation is to look for and accept alternate employment which is in the employee’s own best interest. Should the parties not agree on the reasonable notice period and the matter proceeds to litigation, the employer bears the onus on a balance of probabilities to prove that the employee has failed to lessen their damages.

In the event that an employer has not provided an employee with reasonable notice and/or severance in accordance with their minimum entitlements under the Employment Standards Act, the employee has the option of pursuing a claim under the Employment Standards Act or through the civil courts. An employee cannot elect to pursue a remedy under both. If an employee elects to pursue a remedy under the Employment Standards Act, any award will be limited to the maximum allowed under the Act. Alternatively, if the employee feels that they are entitled to a reasonable notice period beyond the statutory minimum, the employee would have to pursue a claim in the civil courts.

Alternatively, if an employer has ‘just cause’ to fire an employee, they typically do not have to provide an employee with notice or compensation. It bears repeating that the onus is on the employer to establish ‘just cause’.