Employees who bring forward wrongful dismissal claims have a duty to mitigate the damages claimed by making reasonable efforts to find alternative employment. At times, an employee’s health can impact their ability to search for new work.
Background
In the recent decision of Marshall v. Mercantile Exchange Corporation 2024 CanLII 71128 (ONSC), the Superior Court of Justice addressed the issue of a terminated employee’s mental health condition affecting their ability to find new employment. The employee, a 58 year old courier for over 25 years, had taken no steps to find alternative employment nearly nine months after he was terminated. He alleged that he was suffering from stress and depression because of his termination and that he had no duty to mitigate until his mental health condition improved. He claimed that he was entitled to 26 months notice. The Employer challenged his claim and argued that the employee’s mental health condition should be supported by an independent medical examination.
Decision
The court noted that mental health issue can be a valid reason for not being able to mitigate. That said, in this case, the Court found that an employee asserting they are unable to find alternative employment due to mental health issues after 12 months (i.e. an extended period) should be prepared to be subject to an independent medical examination at the employer’s request. By providing the 12-month timing threshold, the court in this case found that such a requirement would strike a balance between giving employers the right to verify employee’s allegation without allowing them to weaponize independent medical examinations to prevent employees with legitimate medical reasons.
Key Takeaways
Employees who are terminated and unable to find another job due to mental health conditions for a prolonged period should be prepared to substantiate their claims even to the point of undergoing an independent medical exam.
Employers dealing with issues involving employees with medical conditions may use this case as a guideline to determine when it may be appropriate to ask an employee for an independent medical examination.
If you have any questions regarding termination, please do not hesitate to reach out to Rodney Employment Law at [email protected] or complete our contact form here.