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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Parmar v. Tribe Management Inc., 2022 BCSC 1675 is the first civil court decision to tackle whether an unpaid leave of absence for noncompliance with an employer’s mandatory vaccination policy can be considered constructive dismissal. The issue before the Court was whether Tribe Management Inc.’s decision to place Ms. Parmar on an unpaid leave of absence was reasonable following the implementation of a mandatory vaccination policy given the circumstances of the COVID-19 pandemic at the time. Ms. Parmar refused to be vaccinated due to choice. She did not apply to her employer to be exempt from the mandatory vaccination policy based on medical or religious reasons. The BC Supreme Court found that it was not a constructive dismissal. Instead, it found that Ms. Parmar had repudiated the employment contract. As a result, the claim was dismissed, and Ms. Parmar was not entitled to any damages.
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Many BC employers will have issued temporary layoffs to employees with the start of BC’s COVID-19 lock down in March. Soon after the start of the provincial lock down, the BC Government extended the temporary layoff period under the BC Employment Standards Act (ESA) from 13 weeks to 16 weeks for COVID-19 related layoffs. On June 26, 2020, the BC Government announced a further extension to 24 weeks expiring on August 30, 2020.
