Manager had no duty to look for job as a crossing guard

Lower court said middle manager let go without cause after 32 years had duty to find any work he could, Court of Appeal strongly disagreed
|Canadian Employment Law Today

The Ontario Court of Appeal overturned a lower court ruling that said a manufacturing manager dismissed without cause failed to mitigate his damages because he didn’t look for work as a school crossing guard.

The lower court awarded James Rienzo, a 61-year-old middle manager at Washington Mills Electro Minerals Corp., 20 months’ pay in lieu of notice but slashed the award by 20 per cent because Rienzo focused his job-search efforts on finding a similar position.

“I find that (Rienzo’s) job searches were frivolous and futile because it was unlikely, having regard to his age, that the position he was seeking would be available to him,” the lower court judge said. “I find he ought to have been attempting to find employment as a school crossing guard or a court services officer or such similar employment.”

The lower court said that although Rienzo did look for alternate work, he did not seek the “right” employment, “namely that which might be readily available to him.”

But the Court of Appeal ripped into that notion, calling it a “misconception” of the nature of a worker’s duty to mitigate damages by looking for another job during the notice period.

“(Rienzo’s) obligation was to act reasonably and diligently in attempting to locate alternative comparable employment,” the Court of Appeal said.

It said the lower court’s 20 per cent reduction in Rienzo’s damages as a result was “unsustainable” and simply couldn’t stand.

Furthermore, the employer never argued Rienzo was obliged to consider alternate employment of the type outlined by the lower court judge nor was there any indication Rienzo had any experience as a crossing guard or a court services officer, it said.

The Court of Appeal pointed out that Rienzo had continued to look for a job of a similar nature to his previous employment for more than two years after being let go.

The Court of Appeal also thought the 20 months’ notice the lower court awarded Rienzo was insufficient.

“(He) was 61 years of age. He had worked for (Washington Mills) for about 32 years and, when he was fired, was serving in a middle management position,” the Court of Appeal said. “The trial judge found that (Rienzo) performed a ‘very important’ function for the (employer.)”

It said the lower court gave no reason for not awarding 24 months’ notice, the high end of the appropriate scale of reasonable notice in this case. So the Court of Appeal increased the notice period to 24 months.

“In all the circumstances, this was the notice period to which (Rienzo), in our opinion, was entitled,” the Court of Appeal said.

It also awarded him the value of all the benefits that would have been available to him during the 24-month notice period including dental, health, employer contributions to CPP, employer contributions to his RRSP and wage increases.

For more information see:

Rienzo v. Washington Mills Electro Minerals Corp.

, 2005 CarswellOnt 6939 (Ont. C.A.)

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