Canadian Employment Law Today - sample

Canadian HR Reporter, a Thomson Reuters business 2016 Canadian Employment Law Today | 3 Refusal to accept new employment offer not a failure to mitigate Timing of new offer of employment can determine whether acceptance would be required to mitigate damages BY RONALD MINKEN FOR MOST employees, the elimination of their position by their employer results in the termination of their employment and a severing of the employment relationship. But in some instances, employees are pre- sented with two options — termination of employment or a new offer of employment in a different position. Sometimes the terms of the new offer of employment are similar to their current terms; other times the new offer is a demotion to a lesser position with reduced compensation. In such a scenario, what is the obligation of the employee? Is the employee obligated to accept the lesser terms and does the refusal to accept those new terms equivalent to the employee fail- ing to mitigate her damages? In the recent case of Fillmore v. Hercules SLR Inc., the Ontario Superior Court dealt with this issue. After more than 19 years of employment, Roy Fillmore, a 51-year-old director of purchasing, was informed by Hercules SLR that his position was being eliminated. Fillmore was provided with two letters at once — one outlining his termi- nation package and the other offering con- tinued employment in the new position of supervisor, service. e new position came with a 20-per-cent reduction in compensa- tion from his director job, but the employer offered to guarantee his previous salary for six months before implementing the re- duced compensation package. Hercules SLR provided Fillmore with a deadline to accept either option. When he failed to make a decision by the deadline, the company proceeded with the termina- tion. Fillmore brought an action for wrongful dismissal against Hercules SLR seeking no- tice. At a summary judgment motion, the judge determined that the employee was entitled to 17 months' notice and that Fill- more had not failed to mitigate his damages by refusing the new offer of employment. e judge looked at the timing and sub- stance of the new offer of employment and determined that the new offer was not an offer to work through the notice period as discussed by the Supreme Court of Canada in Evans v. Teamsters, Local 31, but was really an offer of a new, full-time, de- moted position. In Evans, a terminated employee was asked to continue to work throughout the notice period and the DEMOTION on page 7 » Cases and Trends January 18, February 1, 8, 22 & March 1, 2017 Downtown Toronto The Osgoode Certificate in Labour Law Program Director John D.R. Craig, Fasken Martineau DuMoulin LLP and Assistant Professor, Faculty of Law, University of Western Ontario Registration Fee: $3,995 plus HST Inquire about group discounts, financial aid and CPD credits. Reserve your spot today: www.osgoodepd.ca/LBR17 Are you equipped to deal with the challenges coming across your desk in this constantly challenging, high-stakes area? Taught by a highly distinguished faculty of experts drawn from management, union and government, you will gain critical knowledge of these areas, together with practical insights, strategies and tactics for tackling the most pressing contemporary issues in labour law. This program has been approved for 33 continuing professional development (CPD) hours under Section A3 of the continuing professional development (CPD) log of the Human Resources Professionals Association (HRPA).

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