This is a very good question.
Aside from your severance rights pursuant to the Employment Standards Act and, more importantly, the common law, the answer to this question will likely dictate your response to an offered severance package.
Under the provincial Employment Standards Act, you do not have a duty to take another job right away and, even if you do, your earnings from the new job will not reduce your former employer’s obligation to pay severance of one week’s wages per year of service (presuming you did not receive working notice).
Under the common law, you have a duty to mitigate the loss of your job by taking reasonable steps to search for and accept reasonable alternate employment.
What are reasonable steps?
What is reasonable alternate employment?
Both of these topics are highly particular to the job you have lost. I will not attempt to outline these topics in this brief.
However, under the common law, if you do accept alternate employment during the period of time that you would have been entitled to notice of termination under the common law, these earnings will serve to reduce the value of your claim dollar for dollar.
Another way of putting this is that every dollar you earn during the period your former employer should have given you working notice is a dollar that your former employer will not be liable for in wrongful dismissal damages.
A big part of the advice I provide is how to approach the issue of mitigation in a way that balances your future job prospects with the value of any wrongful dismissal claim you might have.
Generally, a good job is worth more than a good lawsuit. However, the key phrase here is “a good job”.
My job is to help you find the least stressful way to get to your next job while maintaining your hard earned standard of living.
A recent development in the law in this area assists employees that have written employment contracts. Until recently, the law was unsettled on whether an employee had a duty to seek alternate employment and/or whether actual alternate employment earnings should reduce wrongful dismissal damages where there was an express term in an employment contract that specified the amount of severance required.
In a 2012 Ontario decision: Bowes v. Goss Power Products Ltd.,2012 ONCA 425 (CanLII), 351 D.L.R. (4th) 219, the Ontario Court of Appeal affirmed the principle that, if an employer intends to require an employee to mitigate a contractual severance, the employer must make that clear in the contract. It will not be presumed. Likewise, if an employee gets a job right away, unless the contract states that those earnings will reduce the severance, the employee is entitled to the full amount of the severance.
The British Columbia Court of Appeal has now affirmed this statement of law so it is now the settled law of British Columbia: Allen v. Ainsworth Lumber Co. Ltd., 2013 BCCA 271 (CanLII); Maxwell v. British Columbia, 2014 BCCA 339 (CanLII)
Because termination provisions in employment contracts typically serve to restrict an employee’s common law rights, this development could assist some employees with written employment contracts.
In summary, the answers to the questions “What if I get another job right away?” or “What if I can get another job right away?” are very important and can have a significant impact on your rights following a termination of your employment without adequate notice.
Navigating these waters requires knowledge of the law, the Court system and balancing your rights following dismissal with your long term career goals and objectives in mind. If you feel that you may need help then contact a lawyer at Chris Forguson Law today