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25 Described damages ordered against an employer for acting in bad faith in the manner in which it terminated an employment contract Honda v. Keays : No more extension If there was bad faith in manner of dismissal & it caused actual physical & psychological harm to EE EE can be awarded aggravated damages If employer conduct was malicious and amounts to independent actionable wrong, EE can be awarded punitive damages (high threshold) How To Sue? Employeeǯs have ʹ years from the date of dismissal to sue As of Jan. 1, 2010: small claims court up to $25,000 Over $25,000 - Ontario Superior Court of Justice A claim for $100,000 or less is filed under Ontario's simplified rules Just cause --> a trial is necessary Only define reasonable notice motion for summary judgment may be allowed The Duty to Mitigate Compensatory Damages: 2 Types of Contractual Promises Dealing with Termination Promises to pay the employee a predetermined amount at a time of termination Promise to provide reasonable notice of termination o Employee dismissed without reasonable notice has a duty to mitigate A. The Standard of Mitigation Required: Burden on employer to show court that employee failed to mitigate loss by: o Making a reasonable effort to look for a new job o Accepting a job offer that a reasonable person in their position would accept Generally EEs allowed 3 months recovery time & mitigation is not expected Taking on self-employment not considered a mitigating act B. Mitigation With a Job Offered By The Former Employer: Controversy around whether to accept a job from former employer "Highly artificial" to expect that an employer will work nicely and respectfully with an employee in the process of suing them Duty to mitigate requires an employee to accept a reasonable job offer from former employee ( Eans v. Treamsters ) o Salary should be same and working conditions similar o Personal relationships are not acrimonious o Return would not lead to environment of hostility, embarrassment or humiliation See Chevalier v. Active Tire & Auto Centre Unfair if employer is allowed to avoid consequences of wrongful dismissal by simply offering the dismissed employee another job Leaves employee with 2 bad choices: o 1) Accept job they don't want, 2) forfeit wrongful dismissal damages find more resources at oneclass.com find more resources at oneclass.com
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26 Ch.ϭϳ: ResigŶatioŶ: The Test for Assessing Whether an Employee Has Resigned: The employee's intention to resign has to be clear and unequivocal Objective test asks whether a reasonable person looking at what happened would conclude that the employee had resigned Resignation must be voluntary: o Resign or be dismissed; constructive dismissal=no choice!
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