A Reminder To Terminated Employees: Yes - You Must Take Reasonable Steps to Find New Employment, Or Else...

31 July

A Reminder To Terminated Employees: Yes – You Must Take Reasonable Steps to Find New Employment, Or Else…

By Michelle Quinn

This should take less than 5 minutes to read.

In 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:

[35] The evidence discloses several job postings comparable to the plaintiff’s position with the defendant, including one at Air Canada and one at WestJet. The plaintiff was either unaware of these opportunities or chose not to follow up on them because she decided that she had earned the right to look for employment outside of the airline industry. I disagree. In my view, it was incumbent upon the plaintiff to explore available positions in the very industry in which she had spent her entire working career.

[36] I agree with the defendant’s counsel that a reduction in the period of notice is warranted in this case. I find that alternative employment could have been found, including at Air Canada or WestJet, had the plaintiff taken reasonable steps commencing in February 2021 to do so.

[37] There will be a reduction in the notice period to which the plaintiff was otherwise entitled of three months.

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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