Canadian Employment Law Today

December 15, 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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THIS INSTALMENT of You Make the Call fea- tures a British Columbia worker whose miti- gation efforts between his firing and reinstate- ment were questioned by his employer. The 57-year-old worker was employed with Yellowhead Road & Bridge (YRB), a road and bridge maintenance company that operated out of multiple locations in B.C. The worker worked out of YRB's Fort George, B.C. loca - tion and was hired in 2014. On Nov. 8, 2020, the worker was operating a snowplow on a four-lane highway. He tried passing a tractor-trailer and his wing plow made contact with the other vehicle. YRB dis - cussed the incident with him shortly after, but the worker didn't recognize that anything had happened. The company investigated further and discovered that he had caused damage to the tractor-trailer. The worker had been involved in four oth - er incidents that had caused damage to YRB property in the previous 18 months. YRB was also concerned that the worker was unaware that he had clipped the tractor-trailer, an in- cident that could have caused severe damage and injury. YRB decided to terminate the worker's em- ployment based on his "ongoing lack of at- tention and due care." About two weeks after his termination, the worker telephoned four large companies that were locally located, but all four advised him that they were not hiring. One of them asked him to send a resumé, but he didn't do so. He hadn't updated his resumé and it was the same as when he had applied to YRG six years previously. The worker didn't own a computer and didn't have internet access, so his job search mainly involved looking at the weekly news - paper, which he did four times. On one day in late December, he accessed the internet with his brother's help to look for job postings. The worker had experience in the construc - tion industry, but he didn't apply for any con- struction jobs because at 57, he felt his health wasn't the same as when he was younger. In addition, he believed there were no interviews or meetings being held due to the COVID-19 pandemic. He acknowledged that when he started receiving employment insurance (EI) benefits, he didn't feel very motivated to look for work. The union grieved the dismissal and an ar - bitrator overturned it, substituting a 10-day suspension instead. The union demanded that YRB make the worker whole by paying him lost wages and benefits for the 10 months between his termination and reinstatement. However, YRB argued that the worker's miti - gation efforts following his termination were insufficient and his compensation should be no more than four weeks' pay. It pointed in particular to a job posting that was essentially the same position that the worker had filled with YRG with a company with which the union was certified, so the union should have helped him apply for it. The worker hadn't been aware of that posting. ©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 President: Tim Duce Editor: Jeffrey R. Smith Email: Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: Phone: (416) 644-8740 x 236 NAUK Subscriptions Co-ordinator: Donnabel Reyes Email: Phone: (647) 374-4536 ext. 243 YOU MAKE THE CALL Did the worker make a reasonable effort to mitigate the damages from his termination? OR Were the worker's mitigation efforts reasonable? IF YOU SAID the worker's mitigation efforts were not sufficient, you're right. The arbitrator found that the worker didn't need to apply to the similar position, as it was a 90-minute drive from the worker's home. This would mean he would have to commute three hours per day with 10-hour shifts driving snowplows. That amount of driving would put him in an unsafe situation, said the arbitrator, adding that the union didn't have a duty to help the worker mitigate his damages unless it ran a dispatch system or hiring hall. However, the arbitrator noted that the fact that the worker wasn't aware of the similar position indicated that his job search may not have been reasonable. The arbitrator acknowledged that the worker was terminated during the peak of COVID-19, which meant that workplaces were closed, personal contact with prospective employers was difficult, and many companies were go - ing through economic difficulty. It was also reasonable for the worker to take some time after his termination to reach a better state of mind before engaging in a search for em- ployment, the arbitrator said, adding that the worker started calling some companies about two weeks after he was dismissed. The arbitrator also noted that the fact that the worker didn't own a computer or have in - ternet access hindered his job search, but there was an onus to adapt to his situation after a short period of time. He should have made a better attempt at accessing a computer for job searches, the arbitrator said. Ultimately, the arbitrator found that the worker's efforts in the first two months fol - lowing his termination were reasonable — he called four companies and enlisted his brother's help in accessing the internet on one day — but after late December 2020, his efforts were "essentially non-existent and in - sufficient." YRG was ordered to pay the worker compen- sation for lost wages and benefits for the first two months after his termination, but nothing for the rest of the time before his termination, during which the worker failed to mitigate his losses. For more information, see: • Yellowhead Road & Bridge (Fort George) Ltd. and BCGEU (Nydegger), Re, 2021 CarswellBC 3425 (B.C. Arb.). Terminated B.C. worker's job search efforts questioned

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