Canadian Employment Law Today

March 24, 2021

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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©2021 Key Media Canada (HR) Ltd., a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under licence by Key Media Canada (HR) Ltd. CANADIAN EMPLOYMENT LAW TODAY is a trademark of Key Media Canada (HR) Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST/HST#: 79990 3547 RC-0001 How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE info@keymedia.com www.employmentlawtoday.com President: Tim Duce Editor: Jeffrey R. Smith Email: jeffrey.smith@keymedia.com Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: fred.crossley@keymedia.com Phone: (416) 644-8740 x 236 NAUK Subscriptions Co-ordinator: Donnabel Reyes Email: donnabel.reyes@keymedia.com Phone: (647) 374-4536 ext. 243 THIS INSTALMENT of You Make the Call in- volves a dispute over reasonable notice dam- ages and a worker's efforts to find alternate employment after his dismissal. Brian Koski, 38, was a customer success manager in Kelowna, B.C. for TeraGo Net - works, a Toronto-based telecommunications and information technology company. He initially was hired in July 2006 by a similar company called RackForce, which TeraGo acquired in March 2015. On Jan. 1, 2017, TeraGo amalgamated RackForce's business with its own and Koski became an employee of TeraGo. Koski's role was to foster and maintain rela - tionships with TeraGo clients. He supervised six employees across Canada, but he wasn't involved with hiring and firing them or set- ting budgets and work schedules. On Nov. 20, 2019, TeraGo terminated Kos- ki's employment without cause and provided him with the minimum pay in lieu of notice as established in the B.C. Employment Stan- dards Act for his 13 years of service with Rack- Force and TeraGo. Koski didn't begin applying for other em- ployment until more than six months after his dismissal from TeraGo. He also didn't try to upgrade his skills or hire a head hunter to help with his search. Koski remained unable to secure any job interviews for several more months to the point that, by the anniversary of his dismissal, he had yet to interview for a position. Koski filed a claim for wrongful dismissal against TeraGo. TeraGo claimed that Koski was not entitled to the full amount of dam - ages in lieu of reasonable notice because he didn't take reasonable steps to mitigate his losses — no steps at all for six months, fol- lowed by restricting his search to local areas that limited his employment opportunities and failing to upgrade his skills. The company argued that one of its employees conducted a search of "relevant job postings in the month of November 2020" and found some oppor - tunities that could have worked for Koski. Koski responded that he was shocked by his dismissal and it took some time to recover. He said he took about four months to revise his resumé, and when he started looking for alternate employment, his search involved re - viewing Internet job postings multiple times per week, inquiring with friends and acquain- tances about work and sending expressions of interest to positions for which he met the qualifications. He submitted his first applica- tion for work in March 2020 and followed with several more after that, but none led to interviews. YOU MAKE THE CALL Did the worker fail to mitigate his damages after his dismissal? OR Did the worker make sufficient efforts to find new work? IF YOU SAID the worker made sufficient ef- forts to find a new job, you're right. The court noted that the obligation to mitigate damages involves taking reasonable steps to find work and is not measured by the number of job in- terviews or job offers received — in fact, there is no requirement to secure either, said the court. In addition, the court found that "taking reasonable steps to mitigate damages does not require Mr. Koski to incur the cost of hir - ing a head-hunter or to upgrade his skills in the circumstances of this case," as there was no indication that Koski's experience and skills weren't enough for comparable em- ployment. The court also noted that the onus was on TeraGo to prove Koski failed to mitigate his damages. However, the company didn't pres- ent any evidence that Koski had limited his job search effort to his local area or any evidence that potential employees wouldn't require him to relocate. As for TeraGo's claim that one of its employ- ees found several opportunities in a Novem- ber 2020 job search, the court dismissed it as hearsay evidence that provided no explanation of the search criteria used, what qualifications there were for the opportunities that the em- ployee found and was too long after Koski's dismissal to help determine what was available during the notice period. TeraGo was ordered to pay Koski 13 months' salary, benefits and bonus payments minus the statutory minimum it had already paid — splitting the difference between Koski's claim for 16 months and TeraGo's position that 10 months was appropriate. For more information, see: • Koski v. Terago Networks Inc., 2021 BCSC 117 (B.C. S.C.). A fork in the road between termination and layoff The worker waited six months to apply for a new job and had yet to secure an interview one year after dismissal. Reasonable mitigation does not require upgrading skills or hiring a head hunter.

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