Posted by Darryl Aarbo — filed in Litigation
Employment law lawyers talk a lot about “mitigation”, but what is it? Black’s Law Dictionary states: To make less severe. Alleviation, reduction, abatement or diminution.
“Mitigation of Damages” is sometimes called doctrine of avoidable consequences, it imposes on an injured party injured by breach of contract or tort, the duty to exercise reasonable diligence and ordinary care in attempting to minimize damages or avoid aggravating the injury. That’s the legal definition. But what does that mean to the average person in a lawsuit? Why should I be responsible for lowering my ex-employer’s damages when it fired me!
In employment law, mitigation practically means that if you are going to sue your employer for wrongful dismissal then you need to be actively looking for other work and you have to accept reasonable alternate work if offered. What is reasonable really depends on the circumstances and that you should discuss with your employment lawyer.
Also, you have to prove that you are attempting to mitigate. It is not enough to be trying to mitigate, but you have to be able to show the judge or other lawyer what you did to try to mitigate. You have to show them all of your attempts upon request. This means that the person must keep records of their efforts in great detail: where did you apply, when, how much time did you spend, who did you call, when, what responses did you get, what did they say… Updating your LinkedIn page counts, so keep track. Calling up your colleagues to see if they have heard about a job, also counts. They say that networking is the best way to find a job, so make it fun and go for lunch, coffee or even jogging but do remember to ask about any jobs on the go. It all counts as mitigation, especially when jobs are scarce. Use all of your resources to find a job and keep track of what you did, with whom and how long you worked at it.
If you are in the energy sector in Calgary then there may not be any jobs to apply for, so then what do you do? You still have to look and you still have to keep records. Also, at some point you may need to cast you net a bit broader. Again, what this means should be discussed with an employment lawyer because the duty to mitigate is a “duty” – you have to do it and if you fail in your duty then you may lose your law suit.
The duty to mitigate applies to all cases where you are suing someone from a plaintiff in a personal injury to estate litigation, but in employment law it is always a key part of any case.
Also, why should you minimize your ex-employer’s damages when they fired you? The answer is simple, finding another job is in your control, not their control. You are the one that has to be out looking for a job, sending in applications and talking to people, your employer has no control over that process. Thus, it is up to you. It is your duty and you must do it.
By Darryl Aarbo of Aarbo Fuldauer LLP
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