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Dismissal and Employment Law Digest | Trust and confidence

An employee did not fail to mitigate her damages by rejecting offers of re-employment from her employer, who had eroded the employee’s trust and confidence due to its inappropriate behaviour


Dismissal and Employment Law Digest

By: Howard A. Levitt ; Editor: Stephanie Wiebe

Plaintiff employee worked for defendant employer as registered dental technician assistant for 8.5 years — Employee came under significant stress and took medical leave of absence — When employee was ready to return to work she was laid off because of insufficient work — Employee brought action for damages for wrongful dismissal — Employer offered to re-employ employee number of times but she refused to accept offers — Trial judge concluded that there were no barriers to employee accepting offers of re-employment and that acceptance would have been reasonable in circumstances — Trial judge found that employee failed to mitigate damages — Employee was awarded damages for two-month period from when she was laid off to when she was first offered re-employment — Employee appealed — Appeal allowed — Trial judge erred in respect to mitigation issue — Trial judge erred in law in treatment of offers as offers of whole re-employment — Trial judge failed to accord significance to incomplete nature of offers — Trial judge erred in finding that any gaps in entitlement to pay were of no consequence for purposes of assessing reasonableness of employee’s refusal to return to her former employment — Trial judge failed to reflect intangible element of mutuality of trust inherent in employment relationship — Employee’s trust of employer had been eroded by employer’s actions — In circumstances, employee was not unreasonable in not returning to position — Employee did not fail to mitigate damages. Fredrickson v. Newtech Dental Laboratory Inc. (2015), 256 A.C.W.S. (3d) 342, 2015 CarswellBC 2272, 2015 BCCA 357 (B.C. C.A.)

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