Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m S e p t e m b e r 2 0 1 4 39 expertise it needed for its new product lines and offered VP Kenneth Farwell the position of purchasing manager — a job he had previously held — with his current position going to a subordinate with more expertise in new products the company needed to push forward to be competitive. Farwell would continue to receive the same salary he had as a VP, but in the purchasing manager role. The only difference in compensation might be a reduction in the bonus he had pre- viously received. Farwell viewed it as a demotion and turned down the purchasing manager job — one that would require him to report to someone who once reported to him. He also launched a lawsuit claiming he was constructively dis- missed. At trial, the judge agreed the legal test for constructive dismissal had been met but that didn't mean he was automati- cally entitled to a legal remedy. Farwell had a potential duty to mitigate his own losses by taking the position General Coach offered him through a period of "reasonable notice." This was based on established law that even for employ- ees held to have been constructively terminated, they may, in some cases, be required to remain working as an aspect of their obligations to mitigate their losses. Justice Johanne Morissette held Far- well didn't have an obligation to mitigate his damages to accept the purchasing manager's job as it would be "humil- iating and embarrassing" for him to take the demotion. Based on Farwell's age and 38 years of experience, he was awarded payment of the equivalent of 24-months wages in lieu of notice. General Coach appealed to the Ontario Court of Appeal on the basis the trial judge erred in applying a sub- jective test as to what was in Farwell's mind, rather than applying the legally required objective test. Essentially, the court said if an employee rejects the offer of continued employment and asserts a constructive dismissal claim, an employer must re-offer the new posi- tion offered to invoke an employee's duty to mitigate losses. Thomas Gorsky, a lawyer with labour and employment boutique Sherrard Kuzz LLP, says there is a two-stage analy- sis in many constructive dismissals; the first being the question of whether a par- ticular incident constitutes a construc- tive dismissal to begin with. It's also not just about the money. Employees may be able to argue they were constructively dismissed, even if they are paid the same amount of money, if their status in the company changes. In many cases there is also a sec- ond stage in the analysis as to whether, given a person has been constructively dismissed, he or she still has an obli- gation to mitigate the loss by making OSGOODE PROFESSIONAL DEVELOPMENT CONTINUING LEGAL EDUCATION A WORLD LEADER IN LAW SCHOOL LIFELONG LEARNING Priority Service Code: 14-41CL Learn from a "who's who" of more than 20 experts from management, union and government as they explore the key concepts of labour law. Module 1 - January 27, 2015 Labour Law Foundations Module 2 - February 3, 2015 Collective Bargaining Module 3 - February 10, 2015 Grievance Arbitration: Protecting Rights and Resolving Conflicts Module 4 - February 17, 2015 Workplace Investigations in a Unionized Environment Module 5 - February 25, 2015 Restructuring Unionized Environments/The Law of Industrial Conflict Program Director John D.R. Craig Fasken Martineau DuMoulin LLP Assistant Professor, Faculty of Law University of Western Ontario Dates January 27 - February 25, 2015 5 Days over 5 Weeks Registration Fee $3,995 plus HST Public Sector Rate: $3495 plus HST Inquire about financial aid and group discounts. Location Osgoode Professional Development 1 Dundas St. W., 26th Floor Toronto, ON M5G 1Z3 The Osgoode Certificate in Labour Law To Register: www.osgoodepd.ca; Or Call: 416.597.9724 or 1.888.923.3394 Or E-mail: opd-registration@osgoode.yorku.ca

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