Evans v. Teamsters: Must You Go Back to the Employer Who Fired You?

The case

Mr. Evans had worked for the union for over 20 years as a business agent in the Yukon. After a change in union leadership, he was dismissed. In negotiations, the union offered to let him return to work for the rest of a notice period. He refused unless his other demands were met. The Supreme Court held that he had failed to mitigate by refusing to return, and he was not awarded damages for the notice period.

The factors

• Whether the salary, working conditions and duties offered are the same as before.
• Whether the relationships involved are not acrimonious.
• Whether the work is not demeaning, and the employee's dignity is maintained.
• Whether there was a breakdown in trust, or the dismissal involved allegations of misconduct.
• The employer bears the burden of showing the employee failed to mitigate.

What it means today

Offers to return are not common, and most dismissed employees are not expected to go back. But if an employer makes a genuine offer of the same job on the same terms, an employee should get advice before refusing, and should explain any reasons in writing. Courts apply the test objectively, so a general feeling of hurt is not enough on its own.

Common questions

Do I have to accept a lower-paying job from my old employer?

Generally a dismissed employee isn't required to accept a demotion or a significant pay cut to mitigate, though each case depends on the circumstances.

What else counts as mitigation?

Looking for comparable work and keeping a record of applications and interviews. Income from a new job during the notice period usually reduces the damages.

Photos from Pexels: The scales of justice beside a laptop · A wooden gavel on a judge's desk.

This article is general information for people in Ontario, not legal advice. Rules, forms and deadlines change, and every situation is different. Check the current rule or speak to a licensed legal professional before you act.