In the case of Markoulakis v SNC-Lavalin Inc., the Ontario Superior Court of Justice awarded a terminated employee 27 months’ pay in lieu of notice following the termination of his employment.
At the time that the employee was dismissed, he was 65 years old and had been working for the defendant for over 40 years, holding the position of a senior civil engineer. His salary at the time of dismissal was just under $130,000.
The decision was issued prior to the termination of the notice period (approximately 34 weeks had elapsed since termination). In those circumstances, the Court had to decide how to deal with any ongoing mitigation efforts of the Plaintiff. After a careful review of the jurisprudence in this area, the Court chose to apply “The Trust Approach” to resolve this issue. Essentially, the Court ruled that, in the circumstances of this case, the employee would have to account for any mitigation earnings made during the remainder of the notice period. The employer was at liberty to return to Court to seek either a trial of an issue with respect to mitigation or summary judgment. In the meantime, the employer was ordered to pay the Plaintiff his pay in lieu of notice on a monthly basis for the balance of the notice period.
By ruling in this manner, the Court found that the “employee’s right to a determination of the appropriate period of reasonable notice has been satisfied and the employer’s right to challenge the mitigation efforts has been preserved”.
The decision underscores the importance of mitigation efforts. There are many factors which go into analyzing the scope and extent of a departing employee’s duty to mitigate, if any. For this reason and many others, it is recommended that employers and employees alike seek legal advice in any dismissal situation.
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