Even at age 75, a terminated employee's duty to mitigate damages still applies
In a recent decision the Superior Court of Quebec refused to award a termination indemnity to a 75-year-old employee due to his failure to mitigate his damages following the cessation of his employment.
Mr. Levy began his employment at Standard Desk Inc. in April of 1971. In May 2009, the employees of Standard Desk, including Mr. Levy, were advised that the company was shutting down its plant. Mr. Levy, as well as other employees, were offered a position with one of Standard Desk’s related entities. The position was similar to Mr. Levy’s current role and had the same salary and benefits. The only difference in the two positions was that the new role would be in the city of Granby, whereas Mr. Levy currently worked in Laval. However, the company was prepared to offer the employees a daily shuttle service between the two cities, at the company’s expense. Mr. Levy categorically refused the offer and consequently, his employment was terminated in December 2009. Mr. Levy was 75 years old at the time of his termination. Thereafter, Mr. Levy’s lawyer sent a letter of demand to Standard Desk claiming nearly $100,000 as payment in lieu of notice of termination and in moral damages.
The Superior Court first referred to Article 2091 of the Civil Code of Quebec which provides that an employee who is terminated without a serious reason is entitled to receive a reasonable notice of termination, that must take into account the particular circumstances of the employee’s employment, including years of service, age, nature of the job position and difficulty of finding alternate employment. The Court further declared that the objective of the reasonable notice of termination is to provide an employee with a sufficient period of time in order to secure new employment without incurring economic losses.
After considering all these factors, the Court determined that Mr. Levy would be eligible for a reasonable notice of termination of 14 months, in addition to the 8 weeks of notice already given.
However, the Court then proceeded to discuss an employee’s duty to mitigate his damages following the termination of his employment. In particular, the Court confirmed that an employee must make a reasonable effort to find similar employment and not refuse any reasonable offer of employment.
As such, Mr. Levy had the burden of demonstrating that he was incapable of accepting the offer of employment made by Standard Desk and that he was incapable of finding another job. The evidence in this case ultimately showed that Mr. Levy did not try to find a new job because in his view, considering his age, it would be impossible and therefore he was relieved of this duty to mitigate.
The Court confirmed that in order to mitigate his damages, Mr. Levy should have at least accepted the job offer at Granby, which was a reasonable position in the circumstances. Alternatively, considering Mr. Levy he did not want to retire, he was obligated to take reasonable steps to find a new job, which he failed to do. As such, the Court declared that Mr. Levy did not mitigate his damages and consequently, was not entitled to the termination indemnity of 14 months.
This case serves as a reminder that all employees, irrespective of their age, have a legal duty to mitigate their damages following the termination of their employment by either accepting a reasonable offer of alternate employment made by the employer or by making efforts to seek new employment.