Why you should help dismissed employees find new employment, and monitor their progress
By Stuart Rudner
In a previous post, I mentioned that if an employer has offered salary and benefit continuance, with a clawback if the employee obtains new employment, then they have an incentive to assist the employee in finding new work. They also have an incentive to monitor the employee’s progress, for two reasons.
First, if the employee does not make reasonable efforts to obtain new employment, then the employer may be able to use that fact against them if the matter should proceed to litigation. This is unlikely if the parties have already entered into a severance agreement (unless the agreement requires the individual make efforts to find new employment as a condition of future payments), but it can certainly be relevant if the parties have not entered into any kind of agreement and the individual chooses to commence a claim for wrongful dismissal. Second, the employer will want to know if the individual has obtained new employment, as it will affect the employee’s entitlement and crystallize the employee’s potential damages if litigation is commenced.
When I am working with clients, there are two steps I recommend in this context. First, if there is any possibility of an issue regarding the employee’s efforts to find new work, the former employer should actively monitor potential job opportunities. This can involve looking online, in local newspapers and using any information available from or regarding competitors.
In addition to monitoring opportunities, it can be strategically advantageous to forward any legitimate opportunities to the employee, along with a recommendation he pursue them. If the individual has retained counsel, I often forward job listings to the individual’s lawyer. This can result in an effective cross-examination whereby the job listings are put in front of the individual, who is then asked to confirm he is qualified for the jobs and that they are within the geographic area that would be appropriate for him. Once this has been confirmed, he will be forced to come up with an explanation if he did not pursue the opportunity.
The other thing I encourage our clients to do is to periodically check the individual's LinkedIn account (if they have one), or other similar services, in order to ascertain whether they have obtained new employment. Often, one of the first things an individual will do once they secure a job is post about it online. While they may “forget” to advise their former employer of this fact, a vigilant former employer can learn of the new job online.
In most circumstances, a dismissed employee’s entitlement to pay in lieu of notice will be impacted by finding new work. As a result, employers can benefit by assisting the individual obtain new employment, and by monitoring their progress.
Stuart Rudner is a partner with Miller Thomson LLP in Ontario, specializing in employment law. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at (905) 415-6767 or [email protected]. You can also follow him on Twitter @CanadianHRLaw, join his Canadian Employment Law Group on LinkedIn, and connect with him on Google+.
