Duty to Mitigate Explained
21Jan

Duty to Mitigate Wrongful Dismissal Claims Explained

Losing your job unexpectedly can feel overwhelming, especially if you believe you were wrongfully dismissed. In British Columbia, employees terminated without just cause are often entitled to notice or severance pay, sometimes worth months or even a year or more of salary.

But many employees don’t realize that their actions after being dismissed can significantly affect what they receive. Under BC employment law, you have a duty to mitigate a legal obligation to try to find comparable work.

Failing to do so can cost you tens of thousands of dollars in compensation.

What Does “Duty to Mitigate” Mean?

When you’re wrongfully dismissed, the law expects you to act reasonably by seeking new employment instead of remaining unemployed. This is called the duty to mitigate.

It’s not a favour to your former employer, it’s a legal requirement. If you fail to mitigate, a court can reduce or even eliminate the damages you’re owed.

Example: If a judge decides you’re entitled to 12 months’ severance but believes you could have reasonably found a new job after 6 months, you’ll only receive 6 months’ worth of damages.

How BC Courts Apply the Duty to Mitigate

The British Columbia Court of Appeal clarified the approach in Steinebach v. Clean Energy Compression Corp.:

  • The court first decides how long your reasonable notice period should be.
  • It then considers whether you made reasonable efforts to find comparable work.
  • If not, your damages are reduced, but the length of the notice period does not change.

This ensures that employees are not rewarded for passivity after dismissal.

Christopher Achkar - Employment Lawyer

As Christopher Achkar, employment lawyer and founder of Achkar Law, explains:

“If you’ve been wrongfully dismissed, you have a legal duty to look for comparable work but that doesn’t mean accepting just any job. Understanding your rights and obligations early can make a major difference in the outcome of your claim.” 

ESA Minimums vs. Common Law Notice

Many employees confuse their minimum rights under the Employment Standards Act (ESA) with what they could receive under common law. The difference is crucial:

  • ESA Minimums: Up to 8 weeks of notice or pay in lieu, depending on your service.
  • Common Law Notice: Often significantly higher, ranging from several months to over 24 months in some cases.

Your duty to mitigate applies primarily to common law damages. ESA minimums are rarely reduced, but failing to mitigate can drastically cut common law compensation.

What Counts as Reasonable Mitigation?

BC courts don’t expect you to accept any job, only that you make reasonable efforts to find comparable employment. Examples include:

  • Actively applying for roles in your field.
  • Considering jobs with similar pay, responsibilities, and seniority.
  • Keeping records of your job applications and interviews.

Avoiding unnecessary career changes if suitable work is available.

In Steinebach, the court reduced compensation because the employee delayed job searching to pursue a new career, a personal choice that did not satisfy the duty to mitigate.

Who Must Prove a Failure to Mitigate?

The burden of proof is on the employer. To argue that you failed to mitigate, they must show that:

  • Comparable work was reasonably available, and
  • You did not take reasonable steps to pursue it.
  • If they cannot prove both elements, your damages remain intact.

Practical Tips to Protect Your Claim

If you’ve been dismissed in BC, here’s how to protect your wrongful dismissal claim:

  • Start your job search immediately. Don’t wait, courts expect prompt action.
  •  Apply strategically. Focus on roles similar to your previous position.
  •  Document everything. Keep a record of job postings, applications, and interviews.
  •  Use job resources. Government programs like WorkBC can help strengthen your mitigation evidence.
  • Get legal advice early. A lawyer can help you avoid missteps that reduce your compensation.

How an Employment Lawyer Can Help

A BC employment lawyer can be crucial in protecting your severance and proving your mitigation efforts.

They can:

  • Review your case to confirm if you were wrongfully dismissed.
  • Explain your ESA and common law entitlements.
  • Advise you on whether your mitigation steps are sufficient.
  • Challenge the employer’s claim that you failed to mitigate.

With legal guidance, you can avoid common mistakes that significantly reduce your compensation.

In Summary

The duty to mitigate is one of the most important and misunderstood parts of a wrongful dismissal claim in British Columbia. While employees are entitled to damages for lost wages, the law requires them to take reasonable steps to find new work.

Failing to do so can result in months of lost compensation.

Protect Your Wrongful Dismissal Claim Act Quickly

If you were recently terminated in BC, your actions now will directly affect how much severance you receive. Don’t risk losing thousands because of a missed step in the mitigation process.

At Achkar Law, we help employees across British Columbia understand their rights, prove their mitigation efforts, and negotiate fair compensation. We also represent clients in wrongful dismissal disputes, settlement negotiations, and court claims.

Contact Achkar Law

Contact us today to schedule a consultation and protect the severance you’re entitled to. Acting early could make all the difference.  

The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Achkar Law Professional Corporation and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Achkar Law Professional Corporation. ©