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Recall Refusal after Temporary Lay-Off Reduces Damages for Wrongful Dismissal
August 28, 2008

The BC Supreme Court has ruled that a laid-off employee was obliged to accept a recall offer from his employer in order to mitigate his damages. The plaintiff had been placed on a “temporary lay-off” by his employer due to work shortage and was recalled to work two months later. The employee ignored the recall and instead commenced an action for wrongful dismissal in which he sought 6.5 months damages as set out in his employment contract.

The Court found that the there was no authority, express or implied, in the employment contract to allow a temporary layoff. As a result, the plaintiff was able to establish an entitlement to damages for wrongful dismissal. However, the plaintiff failed to mitigate his loss by refusing to return to work when recalled. The Court awarded damages of two months. The Court found that individuals who are dismissed as a result of legitimate business needs will be required to mitigate by returning to work after recall to the same employer more often than employees who are terminated for other reasons.

Davies v. Fraser Collection Services Ltd,.2008 BCSC 942