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Employee Denied Damages for Failure to Return to Work When Called Back

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Earl Chevalier was employed by Active Green + Ross for 33 years and was a service centre manager for 18 of those years. On October 28, 2008, he was notified that he was being temporarily laid off from his job at the end of the month. When Mr. Chevalier later commenced an action for wrongful dismissal, his employer called back stating that it had acted under the mistaken belief that it could lay off Mr. Chevalier. Mr. Chevalier however refused to return to work and decided to continue with this litigation.

The Ontario Superior Court of Justice held that Mr. Chevalier was constructively dismissed when he was laid off by Active Green + Ross on October 28, 2008. Accordingly, he was entitled to notice in the range of 18 to 24 months. However, the Court found that Mr. Chevalier failed to mitigate his damages when he refused to return to work.

Where the employer offers the employee a chance to mitigate damages by returning to work for him or her, the central issue is whether a reasonable person would accept the offer to return to work. However, the employee would not be obliged to mitigate by working in an atmosphere of hostility, embarrassment or humiliation.

Mr. Chevalier claimed that management had engaged in conduct intended to “make his life miserable” in order to cause him to leave his employment. The conduct alleged by Mr. Chevalier included unfair criticism of his work, treating him in a demeaning fashion and ignoring his contractual rights by requiring him to work in Toronto more the 50 kilometres from home.

The Court found that Mr. Chevalier appeared to be very bitter about his experience and as a result the significance of various incidents covered in his evidence became magnified and distorted in his mind over time.

Mr. Chevalier was failing to meet performance goals and comply with company policies particularly on customer service. As a result, more senior managers frequently provided him training and assistance in order to improve. It was also clear from Mr. Chevalier’s employment agreement that he would be expected to travel as part of his job. Mr. Chevalier was reassigned because of the poor performance of his branch to another location where management hoped that Mr. Chevalier would be more effective. He would be working at a busier location with another manager who was considered to have been successful in carrying out the company’s operating procedures.

The Court held that the employer’s conduct was directed toward making Mr. Chevalier a more effective contributor as an employee of Active Green + Ross rather than making his life miserable so that he would leave the company. The Court concluded that a reasonable person would have returned to work and therefore Mr. Chevalier had acted unreasonably when he refused to return to work. As such, he had failed to mitigate his damages, and was thus not entitled to any damages.

For a copy of decision in Chevalier v. Active Tire & Auto Centre Inc., 2012 ONSC 4309, please visit: http://canlii.ca/t/fs4p6

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