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Employment & Labour

Sham offers of reemployment after termination backfires big time

By Barry B. Fisher

In this case, the judge had a situation where a 63-year-old advisor with 12.5 years’ service making $30,000/year was terminated without cause. After paying only eight weeks termination pay and then receiving a demand letter from the plaintiff, the defendant made a series of three offers of inferior employment with various conditions attached, which the plaintiff rejected. The defendant then tried to use these rejections to support an argument that the plaintiff had failed to mitigate his damages.

Not only did the court find that the plaintiff’s rejection of these job offers was well founded and that he had not failed to mitigate his damages, but also that the actions of the employer were so aggressive that an award of $25,000 for aggravated damages, in addition to the 12 month notice period was warranted.

This is what the judge had to say:

The evidence of [the plaintiff] on these matters is uncontroverted and while it is uncorroborated by physicians or other third parties, I nevertheless accept it in its entirety. The defendant was not truthful and candid with [the plaintiff] about the reasons for his termination. It had the benefit of legal counsel before [the plaintiff’s] working notice period had expired and, given the absence of any written employment agreement limiting notice, must be taken to have known that eight weeks’ notice was woefully inadequate. Instead of righting the wrong by reinstatement or offering an alternative position with appropriate encouragement, training and remuneration “top ups” or guarantees for the ensuing 10 months, the defendant embarked on aggressive and unmeritorious defence tactics that it must have known would cause financial stress and considerable worry on the part of [the plaintiff]. There can be no doubt that this is the type of conduct and impact upon a wrongfully dismissed employee that an award of aggravated damages is designed to address.

Whoever said that the ” best defence is an offence” was wrong. This is a prime example of how some courts will treat overly aggressive litigation tactics that cause real damage to their litigation opponents.

Read More at Barry Fisher’s Employment Law Blog

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