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40 S e p t e m b e r 2 0 1 4 w w w . C A N A D I A N L a w y e r m a g . c o m reasonable attempts to find employ- ment, says Gorsky. "So sometimes when you have a constructive dismissal inci- dent like this where there is a demo- tion, there can still be a consideration as to whether the employee should not just leave work and pursue a claim but should remain in employment and search for alternative employment dur- ing that process if they want to. But it would be part of the obligation to mitigate — to stay in the job — and earn income rather than simply departing." Farwell left General Coach and the company felt he should have stayed in the job while he was looking for a new one. Gorsky says that think- ing goes back to an Ontario Court of Appeal case called Mifsud v. MacMillan Bathurst Inc., which held a reasonable person should continue in his job not- withstanding constructive dismissal. In that case, the Ontario Court of Appeal accepted the proposition that employees who are constructively terminated can still have obligations to mitigate their loss by remaining in the job. The Ontario Court of Appeal appears to have clarified that obligation fur- ther in Farwell by saying a company can't expect the employee to understand they have to stay in the job to mitigate their loss — the employer must extend the offer of continuing employment to them again and make it clear it's being extended even though they are claim- ing they have been constructively dis- missed. If that happens, the employee may be obliged to mitigate his or her loss by staying in the job even though they are claiming to have been construc- tively dismissed. So what is Gorsky's advice to employ- ers? "It is such an intricate and confusing area with the double obligation," he says. "There is so much involved contextually — consider the degree to which you're asking for a change to be made in their job and you can make a case that it's reason- able for the employee to accept the change to begin with in terms of the construc- tive dismissal analysis, or, alternatively to remain in the workplace as part of the employee's mitigation obligation." 82 Scollard Street, Toronto, Canada, M5R 1G2 Contact Stacey Ball at (416) 921-7997 ext. 225 or srball@82scollard.com web: www.staceyball.com Ball Professional Corporation Excellence in Employment & Labour Law • Counsel in Leading Cases • • Author of Leading Treatise • Wrongful Dismissal Employment Law Human Rights Post Employment Competition Civil Litigation Appellate Advocacy Disability Referrals on behalf of employees and employers respected all_CL_Mar_12.indd 1 12-03-13 2:27 PM lEgal rEport/labouR & employmenT MORE THAN 6,145 CASES CITED Canadian Employment Law is a one-stop reference that provides a thorough survey of the law and analysis of developing trends, suggesting potential avenues of attack as well as identifying potential weaknesses in the law. Canadian Employment Law has been cited by the Supreme Court of Canada, in superior courts in every province in Canada and is used in law schools throughout Canada. CANADIAN EMPLOYMENT LAW STACEY REGINALD BALL CANADA LAW BOOK ® ORDER# 804218-62303 98 2 volume looseleaf "OUJDJQBUFEVQLFFQDPTU QFSTVQQMFNFOU supplements per year Supplements invoiced separately 0-88804-218-3 AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.caSTXFMM.cPN Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. ntitled-3 1 7/13/11 4:01:40 PM

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