Losing a job can be a distressing experience, particularly when the individual who has been fired is facing challenges in their job search because they have outdated skills.
Peter McSherry, an employment lawyer in Guelph says, “The court expects people to make reasonable efforts to find a new job. They don’t have to take the first job that becomes available to them, but they’re expected to make reasonable efforts to minimize their losses by applying for similar types of positions with the goal of gaining employment.”
The person who lost their job may have skills that are not easily transferrable. They may have worked on a unique piece of equipment or with software that’s of no value to another employer. McSherry says, “When they are terminated, they find that their skills do not match what a new employer is looking for. Courts have determined that it’s reasonable for that individual to meet their duty to mitigate by retraining so they can be more marketable for employers later in the notice period or perhaps even when the notice period is over.”
During the notice period an employer does have an obligation to compensate the employee so that they suffer no financial losses during the court determined notice period. Employees are also not expected to take any job, anywhere. McSherry says, “Let’s say someone lost their job at a manufacturing plant in Guelph which is only 10 minutes from their home. A court may expect them to apply for jobs of a similar nature in Guelph, Kitchener-Waterloo or Cambridge, but it wouldn’t expect them to take a job in Whitby.”
Benefits of retraining
Technological advancements and evolving job markets may make certain skills obsolete or less marketable. Retraining allows individuals to update their skills making them more competitive and increasing their job prospects. A long-service employee for example, who is entitled to a lengthy notice period can take advantage of the retraining period to set themselves up for the future rather than moving from one precarious job to another. McSherry says, “In such circumstances, retraining presents itself as a promising option to acquire new skills and enhance employability. Tuition fees could be covered by the employer in certain cases.”
If someone was an unskilled production worker and then took courses to upgrade their skills in health and safety issues, the employer may be expected to cover the cost of the course. But if they decided to go back to school to get a master’s degree in English literature, that would likely not be recoverable.
There may be employees who had been accommodated with modified work to ensure they could do their, unfortunately, a future employer may not be willing to make such accommodations. This may be another circumstance where the requirement to retrain is crucial. There may be employees who specialized in legacy software and now need to upgrade their skills. If an employee has been working on an old system for more than a decade, they need to upgrade their skills to be marketable to another employer.
How does retraining affect severance?
When deciding on compensation, Ontario courts consider various factors including age, length of service, position, and availability of alternative employment. McSherry says, “The courts may also consider an individual’s efforts to mitigate their damages by pursuing retaining. As with all things in employment law, the question becomes, is the effort to upgrade job skills reasonable under the circumstances and is the dismissed employee making an effort to minimize their losses.”
The court may view such retraining initiatives favourably when deciding on a severance package. McSherry says, “While retraining may not guarantee a specific outcome, it demonstrates a commitment to improving one’s skills and employability, potentially influencing the court’s decision regarding compensation. Taking a proactive approach by enrolling in a retraining program to improve job prospects, may be viewed by the court as a positive effort to mitigate damages.”
Management might argue that if the retraining efforts improve an individual’s job prospects the court should reduce the amount of severance. However, as McSherry points out, “Each case is unique and the court’s decision regarding compensation can vary based on specific circumstances.”
Many people are not in a financial position to retire at the age of 65. They may want to contribute but they don’t want to do what they were doing at the pace they were doing it before. Peter McSherry says, “Retraining is an opportunity for people to make changes in their lives. However, there is the chance that the court might not consider retraining to pursue your passion, reasonable efforts at mitigation. Retraining for something else may make your life better, but it may or may not be something the court would agree is a reasonable mitigation. That’s why it’s crucial to seek legal advice.”
Contact a lawyer
The question that a lawyer could help answer is whether an individual’s effort to upgrade their skills is reasonable under the circumstances and an effort to minimize their losses. Peter McSherry stresses, “ I think the important thing to realize is that if your life comes to a crossroads and re-employment in the types of jobs you had before is not likely, you should talk to a lawyer to get some advice as to whether a court would expect you to jump back into the employment market under the circumstances or whether it would say that it was appropriate for you to consider going back to school to find other work.”
An employment lawyer could help you understand fact-driven decisions that a court might make regarding your circumstances. Peter McSherry says, “If you want to pursue retaining but a court does not agree that it is an effort at mitigation, it may be better for you to accept something after negotiating to get the most favourable terms possible. Information and knowledge will help you make a decision that could help you build a better future.”
If you have been dismissed and are wondering if retraining is an option that you should consider, Peter McSherry can help you understand your entitlements, obligations, and legal risks.
Contact Peter at (519) 821-5465, Email: [email protected] or visit www.petermcsherry.ca.