A Reminder To Terminated Employees: Yes – You Must Take Reasonable Steps to Find New Employment, Or Else…
By: Michelle QuinnIn Okano v. Cathay Pacific Airways Limited, 2022 BCSC 881, the plaintiff, Frances Okano, (“Ms. Okano”) was terminated from her employment at Cathay Pacific Airways Limited (“Cathay”) on December 11, 2020, after thirty-five years of service. She was sixty-one years of age at the time of termination, and held a middle management position.
She had spent her entire working career at Cathay.
One issue before the Court was whether Ms. Okano had failed to take reasonable steps to mitigate her loss during the reasonable notice period.
Her evidence before the Court was that she did nothing to search for new employment prior to February 2021. Ms. Okano created a résumé and started searching various online job sites for openings. She received several notifications and alerts of job postings, however, she considered that none of them were suitable for a person of her skill set.
Interestingly, Ms. Okano chose not to apply for any jobs in the airline industry because it was not “in her” anymore. From her perspective, she felt entitled, after thirty-five years, to go down a different career path. She was not interested in going back into travel or the airline industry.
By the time of trial, Ms. Okano had applied for fifty positions and attended eight interviews, none of which resulted in an offer of employment.
Ultimately, the Court found that Ms. Okano did not take reasonable steps to find alternative employment, and stated that her attempts to find new employment can best be described as “passive”.
The following are key passages from the Court:
The Court awarded Ms. Okano twenty-four months of reasonable notice (salary) with a reduction of three months on account of her failure to mitigate her losses.
If you have been terminated and need advice, or have any questions about this decision and mitigation generally, please contact Michelle Quinn, Partner, in the Employment and Human Rights Group at mquinn@rbs.ca or call at 604.661.9229.
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In British Columbia, employees terminated without cause are entitled to notice or termination pay, while employees dismissed for cause are not. But what if, after a without-cause termination, the employer later uncovers misconduct that could have justified a for-cause dismissal? In our latest blog post, we review a recent BC decision where improper allegations of after-acquired cause backfired on the employer, highlighting important considerations for employers navigating termination issues.
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We continue to receive many questions from employers and employees about terminations and lay-offs, so in this blog post we provide an overview of the key notice provisions in the BC Employment Standards Act (“ESA”) that may assist you during these uncertain times. The minimum notice periods identified in the ESA may be in the form of working notice or payment in lieu of notice. In particular, we take a look at rarely used section 65(1)(d) of the ESA which states that an employer is not required to provide notice of termination or pay in lieu of notice to its employees if it can prove that COVID-19 has been an “unforeseen circumstance” that has made continuing the employment contract “impossible”.
