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Union Business Agent Fails to Mitigate by Refusing Offer to Resume Employment
May 8, 2008

The Supreme Court of Canada recently confirmed that a union business agent breached his duty to mitigate when he refused an offer to return to employment with his ex-employer.

When the union’s elected executive changed, the plaintiff’s employment was terminated after 23 years of service. Shortly after the termination the union changed its mind and offered to take him back in his old job. He refused and sued for wrongful dismissal. At trial, he was awarded 22 months’ notice, resulting in an award of damages of over $100,000.

On appeal, the union argued that the plaintiff failed to take reasonable steps to mitigate his loss when he rejected the offer to resume his employment. The BC Court of Appeal agreed. The Supreme Court of Canada upheld that decision, finding that it was unreasonable for the plaintiff to refuse to return to work because the employment relationship was not seriously damaged and the terms of the re-employment were the same as his previous terms of employment. The Court confirmed that employees must sometimes mitigate wrongful dismissal damages by returning to work for their ex-employer provided they do not have to work in an atmosphere of hostility, embarrassment or humiliation.

Evans v. Teamsters Local Union No. 31, 2008 SCC 20