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The duty to mitigate, in short, is an employee’s obligation to search for new work following the termination of his or her employment. It is important that an employee takes this duty seriously. If not, it could significantly limit what he or she is entitled to on termination. Moreover, most employees do not want to stay unemployed long, and taking your job search seriously will likely limit the period of time you will be unemployed.

The following is a list of 5 tips for looking for new work.

1. Take some time

Courts have recognized that you are entitled to a reasonable amount of time to yourself before looking for new work. There are no hard or fast rules as to what is a “reasonable amount of time”, but based on your specific circumstances, a court will allow you a period of recovery time to deal with the emotional fallout of your termination. A court will consider factors including your length of service with the previous employer and whether you have any health issues that affect your ability to find new work. The reasonable period could be as short as a couple of weeks, up to several months.

While you might not be searching for a job during this period, it is a good opportunity to begin thinking about what direction you would like to take your career, start discussing options with your professional network, update your resume and draft cover letters.

2. Work with a professional 

A lawyer can help you deal with securing your legal entitlements on termination, but we are limited in assisting you to find new work. However, career counselors can provide a variety of services to help you find a new job, including:

  • Discussing potential career options
  • Building your resume and cover letter
  • Interview coaching
  • Matching you with potential employers.

Most employees we see are initially skeptical about whether or not these services are useful; however, after engaging in these services, the vast majority find it is well worth their time. These services are particularly helpful for long-service employees who are disconnected from the current job market.

Some employers are willing to pay for these services, and if you enter into negotiations with or even sue your employer for your entitlements on termination, you can likely seek the cost of engaging with a career counselor. Regardless of who pays for these services, they are confidential; therefore, you should not be afraid that your former employer will be made aware of how your sessions are going.

3. Track everything

You should keep every single document related to your attempt to mitigate. That means every cover letter, resume, application, job database posting, job offers, tickets from networking events you attend, cab receipts from interviews you attend, and even notes from working with a career counselor. Also, keep a daily journal of everything you do to find new work, including interviews you attend, networking meetings, and phone calls related to new work.

There are two reasons for this. First, it will help you track and organize your job search efforts. Second, if you decide to sue your employer for your entitlements on termination, it will provide you with the evidence you need to defend an employer’s claim that you have not taken sufficient steps to mitigate. Also, if you sue, you can seek recovery for the cost you incurred looking for new work – your efforts will therefore allow you to quickly calculate the expense of your job search.

4. You might not have to mitigate

While you will obviously want to find new work, you might not legally be required to; my colleague Chris Rootham recently wrote a blog about this subject that you can read here. Courts have recognized two situations where you do not have a duty to mitigate:

1.     You have a fixed-term contact

2.     You have a contract that sets out your entitlements on termination, but does not require you to mitigate.

You should not assume that you fit into either of these categories, and should speak with a lawyer before hanging out on a beach for 12 months rather than searching for new work.

5. Employers, help!

This last point is for all the employers out there: help your employees find new work. Provide them with outplacement counseling, offer letters of reference, and provide any other assistance that will help your former employee find new work.

Remember, the sooner the employee finds a new job, the less you owe him or her. If the employee finds new work during their reasonable notice period, the employer gets credit for any income they earn. For example, if a court would award an employee a 24-month notice period, but the employee finds reasonable comparable work after 12-months, the employer will only be on the hook for 12-months of the notice period. Being fair with the employee, and assisting them with their career transition, could significantly limit your legal exposure.

Note, however, that the statutory termination and severance pay provisions in the Employment Standards Act, 2000 are not subject to the duty to mitigate. This means that even if an employee finds work immediately after termination, or does not take sufficient steps to mitigate, the employer still needs to pay him or her these statutory amounts on termination.

To read more about the duty to mitigate, check out our previous blog post.



This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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