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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Employers can discipline and, in some cases, dismiss employees for off-duty conduct. The question is how bad does the conduct have to be? In the recent BC Supreme Court decision of Klonteig v. West Kelowna (District), 2018 BCSC 124, the judge found that the District (the employer) should not have terminated Mr. Klonteig for cause after he was given a 90 day administrative driving prohibition while off duty.
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In this blog post, I reviewed the recent human rights case of Gaucher v. Fraser Health Authority where the Tribunal dismissed Ms. Gaucher’s discrimination complaint. Ms. Gaucher claimed that her gradual return to work (“GRTW”) plan was flawed and she was discriminated against on the grounds of disability in contravention of the BC Human Rights Code. In its decision, the Tribunal considered the duty to accommodate and held that, while the plan was not “perfect”, the employer would be able to prove at a hearing that it reasonably accommodated Ms. Gaucher throughout her GRTW.
