The Ontario Court of Appeal has confirmed in a recent decision
that an employee’s duty to mitigate following a without cause
termination does not require the employee to accept a notably
lesser position with the same employer.
In Dussault v. Imperial Oil Limited, the Court held
that despite the general rule that an employee may be obligated to
mitigate his or her loss by accepting a comparable position with
the company, in order to be comparable, offers of employment must
be offer comparable status, hours, and remuneration of the
employee’s employment with his/her former employer. Put
simply, comparable employment does not mean any employment.
Background
The two plaintiffs in Dussault were managers with
Imperial Oil Limited (“Imperial”) for over 39 and 36
years respectively. Their remuneration included participating in a
savings plan, whereby contributions were split between savings and
a retirement income plan.
