There are three important points from the employment breach of contract decision of the Court of Appeal in Fredrickson v. Newtech Dental Laboratory Inc., 2015 BCCA 357.
1 – If an employer claims a dismissed employee has failed to mitigate, an offer of re-employment should ensure the employee does not lose any wages. An employee should not be required to return to work when she is involved in a litigation with her employer regarding the offer.
Furthermore an employer can’t terminate an employee without notice or pay in lieu of notice. The court found that it would be unjust for the employee to have to choose between:
- returning to work and suing the employer
- returning to work and allowing the employer not to cover lost wages
- declining the offer of re-employment and foregoing any claim for lost wages
2 – Both parties must act in good faith, fair dealing and trust govern the employment relationship, it’s a two way street. Employers and employees have the same obligation.
3 – An employee should not be required to accept re-employment in order to mitigate damages.
In this case, the Court accepted that the employee’s trust in her employer was eroded and found that she was not unreasonable in refusing to return to work. The order was set aside and the question of reasonable notice remitted for determination by the trial judge.
Timothy D. Goepel
Partner lawyer in Labour and Employment Law
Lindsay Kenney LLP – Vancouver Law Office