Does an employee have to accept retraining?
by Cristina Tomaino
In the recent case of Benjamin v. Cascades Canada ULC, the Ontario Superior Court of Justice held that an employee had failed to reasonably mitigate his damages by choosing to retrain for a new career as a welder rather than apply for comparable re-employment.
On May 16, 2016, Cascades terminated the plaintiff employee, Benjamin, along with 41 other employees following the elimination of all production functions at its Scarborough plant. As a service to the dismissed employees, Cascades provided all those affected with counselling sessions to provide guidance on writing resumes, interview techniques, and information about the job search process.
Beginning on May 18, 2016, Cascades also distributed weekly newsletters containing information about job opportunities at Cascades’ other locations and at outside companies with similar openings. The first newsletter included three positions at other Cascades’ locations in the Greater Toronto Area that the plaintiff was qualified for and “likely” would have received had he applied.
Benjamin, however, elected to enroll in a six-month welding program rather than apply to any of the open positions as he wanted more job security and control over his working hours. Accordingly, he did not seek new employment until he began searching for welding jobs in February, 2017.
The court found that in the circumstances the plaintiff had failed to reasonably mitigate his damages by choosing to retrain rather than apply for the available positions at Cascades. His entitlement to wrongful dismissal damages, therefore, ended when he unreasonably decided to enroll in the welding program in June, 2016.
As we know, in wrongful dismissal cases the burden falls on the employer to prove a failure to mitigate on the part of the dismissed employee. Benjamin shows us that if an employer can establish that the dismissed employee (i) chose to retrain instead of seeking comparable employment, and (ii) could have procured that comparable employment, it will have met that onus. Although retraining can amount to reasonably mitigation in some cases, Justice Glustein emphasized that an employee does not have a “free pass” to change careers on the employer’s dime during the reasonable notice period when comparable employment is available.
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