A Reminder To Terminated Employees: Yes – You Must Take Reasonable Steps to Find New Employment, Or Else…
By: Michelle QuinnIn Okano v. Cathay Pacific Airways Limited, 2022 BCSC 881, the plaintiff, Frances Okano, (“Ms. Okano”) was terminated from her employment at Cathay Pacific Airways Limited (“Cathay”) on December 11, 2020, after thirty-five years of service. She was sixty-one years of age at the time of termination, and held a middle management position.
She had spent her entire working career at Cathay.
One issue before the Court was whether Ms. Okano had failed to take reasonable steps to mitigate her loss during the reasonable notice period.
Her evidence before the Court was that she did nothing to search for new employment prior to February 2021. Ms. Okano created a résumé and started searching various online job sites for openings. She received several notifications and alerts of job postings, however, she considered that none of them were suitable for a person of her skill set.
Interestingly, Ms. Okano chose not to apply for any jobs in the airline industry because it was not “in her” anymore. From her perspective, she felt entitled, after thirty-five years, to go down a different career path. She was not interested in going back into travel or the airline industry.
By the time of trial, Ms. Okano had applied for fifty positions and attended eight interviews, none of which resulted in an offer of employment.
Ultimately, the Court found that Ms. Okano did not take reasonable steps to find alternative employment, and stated that her attempts to find new employment can best be described as “passive”.
The following are key passages from the Court:
The Court awarded Ms. Okano twenty-four months of reasonable notice (salary) with a reduction of three months on account of her failure to mitigate her losses.
If you have been terminated and need advice, or have any questions about this decision and mitigation generally, please contact Michelle Quinn, Partner, in the Employment and Human Rights Group at mquinn@rbs.ca or call at 604.661.9229.
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The Court of Appeal provided guidance recently on how CERB payments should be treated with respect to wrongful dismissal damages. In Yates v. Langley Motor Sport Centre Ltd., 2022 BCCA 398 the Court of Appeal found that CERB payments do not concern employers in wrongful dismissal claims, as it is a benefit provided to workers to offset the impact of the COVID-19 from the authorities administering the income assistance program, not the employers. Therefore, taking into account policy considerations, the Court of Appeal deemed it would not be keep with the intention of Parliament to deduct CERB payments from wrongful dismissal damages.
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The coronavirus pandemic has brought so much uncertainty with it and has turned the world of work on its head. Every employer is required to have a COVID-19 Safety Plan that assesses the risk of exposure at their workplace and implement measures to keep their workers safe. On November 24, 2020, BC issued a Public Health Order (the “Order”) requiring the use of masks in all public indoor spaces in the province. Since this Order, our Group has and continues to receive a lot of questions from business owners and employers on the mandatory masking order, in particular, what happens if an employee refuses to comply with an employer’s COVID-19 Safety Plan including an unwillingness to wear a face mask?
In this blog post, we consider whether an employer can terminate an employee’s employment for cause for refusing to wear a face mask while at work.
