Canadian Employment Law Today

Canadian HR Reporter, a Thomson Reuters business 2016 Supreme Court determined that the em- ployee's refusal to do so resulted in the employee failing to mitigate his damages. In Fillmore, the court also determined that the employer's new offer was not a reasonable offer of employment due to the demoted position and reduced earn- ings. As a result, the employee was not obligated to accept the new terms of em- ployment as a means of mitigation. Lessons for employees When presented with the option of ter- mination or a new position, it is impor- tant to look closely at the new terms of employment that are being presented. If the new terms of employment are not comparable, the offer may not be reason- able from a legal standpoint and there will be no legal obligation on that employee to accept the revised terms. However, if the new terms are comparable, it may be rea- sonable for the employee to accept those terms. e timing of an employer's re- quest that an employee continue to work in these situations is also very important to determine that employee's mitigation obligations. An employer's request that an employee work through the notice pe- riod after the employee refuses to accept the new position is more likely to trigger an employee's mitigation obligation than a scenario where the employee is pre- sented with a new, lesser position as an alternative to termination. Lessons for employers e decision on whether to terminate employees or provide the option of a revised position as an alternative to ter- mination is a delicate one. To trigger the employee's duty to mitigate, it may be pru- dent to offer a comparable position rather than a lesser position, consider whether it is appropriate to offer the employee a longer guarantee of remuneration, or whether to also offer working notice. e employee's duty to mitigate is also more likely to be triggered when the em- ployer requests that the employee work through the notice period after an em- ployee refuses to accept a revised position. For more information see: • Fillmore v. Hercules SLR Inc., 2016 Carswell Ont 11560 (Ont. S.C.). • Evans v. Teamsters, Local 31, 2008 Carswell Yukon 22 (S.C.C.). Canadian Employment Law Today | 7 Cases and Trends "merely an inquiry by the manager as to whether (Gibbons) would be interested in a new position which had been created by the (company) and not an acceptance of the em- ployment contract." Once Gibbons indicat- ed his interest, the company gave him a job description so he would know exactly what the position would entail, said the court. When BB Blanc provided a job descrip- tion, it also told Gibbons he would be get- ting an employment contract with all the details including the promotion, salary in- crease, start date, and termination clause. en, when the company gave Gibbons the employment contract, he took five days un- til he signed it. Given that Gibbons had the contract for this amount of time before he signed it — and the fact that he was univer- sity-educated — the court found he was so- phisticated enough and had enough time to understand what he was signing. In addition, there was ample opportunity for him to ask questions about it and seek legal advice. e court found everything indicated that Gibbons' new job duties and salary all start- ed on the start date shown in the employ- ment contract and not before, as Gibbons claimed. As a result, the promotion and new salary constituted consideration for signing the new employment contract and no other consideration was necessary to make it valid, said the court. "I conclude that both the contract and the termination clause are enforceable and the notice given to (Gibbons) on termination is in accordance with the termination clause," said the court. "Consequently, (Gibbons) is not entitled to any further notice or payment in lieu of notice as a result of the termination of his employment by (BB Blanc)." e court noted that had the termina- tion clause not been valid, Gibbons would have been entitled to between two and three months' notice, due to the fact he worked for BB Blanc for 22 months, was relatively young, and was able to secure other employ- ment fairly easily — Gibbons found another job on the last day of his two-week notice pe- riod from BB Blanc. Gibbons' claim for wrongful dismissal damages was dismissed. See Gibbons v. BB Blanc Inc., 2016 CarswellOnt 11390 (Ont. S.C.J.). « from NEW JOB on page 1 Promotion didn't start until new contract was signed ABOUT THE AUTHOR RONALD S. MINKEN Ronald S. Minken is a senior lawyer and mediator at Minken Employment Lawyers, an employment law boutique, located in Markham, Ont. He can be reached at www.MinkenEmploymentLawyers.ca. Ron gratefully acknowledges Sara Kauder, Kyle Burgis and Gillian Fahy for their assistance in preparation of this article. Demotion and pay cut not a reasonable offer « from REFUSAL on page 3 The court found everything indicated the new job duties and salary all started on the start date in the contract and not before. If the new terms of employment are not comparable, the offer may not be reasonable and the employee will have no obligation to accept.

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