An Employee’s Duty To Mitigate
Every employer, at some point or another, will face the tough situation of staff terminations. You might be a guilt-ridden principal of a family-run business, reluctantly letting loyal staff go. Or, you could be the CEO of a multi-national corporation, being pilloried by the press after a massive cost cutting “restructuring”. Staff terminations are no picnic for anyone. Employers in such circumstances must understand our laws enough to avoid wrongful dismissal lawsuits. Your employees have up to two years from the dismissal date to file one. Often, the trump card is held by the party in control of the facts about the employee’s duty to mitigate the job loss.
What is Employee’s Duty to Mitigate?
The law requires you to compensate your employees when you decide to end their employment. Their termination package should reflect their circumstances. It should also adequately cover them financially for a reasonable amount of time to find equivalent work.
Laid off employees, too, have a responsibility. They must put a concerted effort into their job search. This is also enshrined in law and known as the Employee’s Duty to Mitigate their job loss. After all, the best outcome for all parties is for the individual to find a job as quickly as possible. And, this is enough to stop a wrongful dismissal lawsuit dead in its tracks.
Why Employees Sue
Jobs form the fabric of an economically secure society. Consequently, a job loss is one of the single, most devastating events in anyone’s life. It comes fourth, after the death of a child, a parent and divorce. The symptoms of reactive depression closely resemble those in mourning. People who unexpectedly lose their employment suffer sleeplessness, anxiety, lack of appetite, indecision and irritability.
For many, the initial shock and humiliation not only dampens their ability to start job hunting, it also quickly ripens their feelings of exploitation and outrage. Eventually, a desire to strike back at you for callously ripping away their economic security becomes predictable and overwhelming.
Offering Minimum Notice & Severance
Employers should never underestimate the emotional consequences of a job loss on their employees. When you proceed to handle terminations in an overly frugal and antiseptic manner, the perfect storm occurs. Minimum notice and severance, stipulated by law as the starting point, is sometimes woefully inadequate to carry laid-off individuals through the weeks or months of unemployment.
The legal system awaits such cases with open arms. Our courts have seen decades of history that overwhelmingly favour employees in such circumstances.
Job Loss Counselling
In practice, we have seen all kinds of circumstances come into play following a job loss. The laid-off father who uncharacteristically begins to physically discipline, the mother who neglects her young children, the financial crises, the breakdown in marital relations, the gambling, the person who walks into the shower and stays long after the hot water tank runs empty.
Many individuals are overwhelmed and this delays their ability to start looking for work. In the face of a wrongful dismissal lawsuit, courts will pay attention to such details. People exhibiting behaviours noted above often require job loss counselling to help them grieve before they can productively begin looking for work.
Furthermore, a job search campaign, in and of itself, can be emotionally stressful, between the highs of scoring an interview and the lows of receiving a rejection letter. It will happen multiple times and the candidate must possess the reserves to cope with it all.
Equity’s outplacement services include job loss counselling for individuals who require it. Our in-house professional therapists deploy effective strategies with the singular goal to help individuals get ready for the job hunt as quickly as possible. Without the early intervention of job loss counselling, the process can get drawn out. It consequently leaves the threat of a wrongful dismissal case festering for up to two years.
Proving Mitigation Failure
In a wrongful dismissal lawsuit, where your former employee’s lawyer makes a case for insufficient severance pay, the only defence often available to you is the high burden of proving mitigation failure. You require facts to convince a judge in a court of law. So how exactly can employers prove a former employee’s lack of effort?
The answer lies in personal career transition services. When employers purchase outplacement services as part of severance packages, we assign a personal career coach to work with the candidate as a non-adversarial partner, even while representing the employers’ interests. We obtain written consent to collect and organize information pertinent to their job search. Consequently, you receive information to track their efforts.
However, if you concede the field, then the opposing counsel will shut down your ability to gain access to such information, plain and simple!
Proctor and Gamble Lawsuit
In fact, when employers include outplacement services in their termination packages, courts view their actions much more favourably. This was demonstrated in a wrongful dismissal lawsuit filed against Proctor & Gamble in 1991. The judge hearing the case recognized the tangible value of outplacement services included in the severance package they offered to their terminated employee. Consequently, he ruled that the services represented “an active means of assisting the employee to secure alternative employment”.
Satisfied that they had had met the legal obligation to genuinely help their departing employee, the judge sanctioned the original offer, promptly dismissing the wrongful dismissal case.
Susan Heim is the president of Equity Career Transition and Outplacement Services, offering personalized coaching services for individuals in their quest for the perfect job and career. Equity also provides cost-effective outplacement services for organizations, large and small, in both the private and public sector. Contact us for a quote.
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