In an interesting decision out of Ontario, the Court found that an employee who over-stated his work experience on his resume and limited his job searches to only managerial positions failed to properly mitigate his damages after his termination.
In Skov v. G&K Services Canada Inc (2017 ONSC 6752), Justice Diamond of the Ontario Superior Court of Justice ordered a “mini-trial” to determine the issue of the character of the plaintiff’s employment, as it was relevant to both:
(a) determination of reasonable notice owed to the plaintiff; and
(b) the plaintiff’s mitigation efforts.
During the course of the one-day “mini-trial” held on November 6, 2017, the Court heard oral testimony from four employees and prior employees of G&K Services Canada Inc. Each testified that the plaintiff’s title at G&K was more of an honorary title reflecting his significant years of experience and that in reality, the plaintiff essentially provided data-analysis and analytical support to the employer.
Function Can be More Important Than Titles
One witness testified that the plaintiff’s role was basically redundant and he was “swallowed up by the system” rather than being an essential employee. Furthermore, the plaintiff had no one within the business reporting directly to him and his functions were purely non-managerial. The plaintiff was, however, remunerated highly and earned $120,000.00 per year and had entitlement to some aspects of the managerial bonus program, but those factors were largely attributed to the length of the plaintiff’s service.
In Justice Diamond’s analysis of the law and the facts of the case, he held that “whether or not the plaintiff held a management position as at his termination … [was] still relevant, as the defendants take the position that the plaintiff’s contention that he was a manager… [was] simply inaccurate.” According to Justice Diamond at paragraph 29 of his decision,
 A manager is charged with exercising management functions. The hallmarks of being a manager include whether the employee had autonomy, discretion and authority in the conduct of the employer’s operation. The jurisprudence is clear that the nature of the work performed by the employee is more important than any title bestowed upon him/her. Managers are not liaisons between other employees and executive members who make significant decisions.
Furthermore, citing McCracken v. Canadian National Railway (2010 ONSC 4520), Justice Diamond went on to state:
“An employee’s title or job description is not determinative of whether the employee is a manager, and his or her status is determined by what the employee does or has been charged to do in the business enterprise.”
Ultimately, relying on the oral testimony of the current and former employees, Justice Diamond held that the plaintiff was not “senior or managerial.” Applying traditional Bardal[i] criteria for determining reasonable notice, Justice Diamond held that the plaintiff was entitled to 18 months’ pay in lieu of notice.
Don’t Change or Create Your Own Job Title
However, the analysis did not end there and the plaintiff’s mitigation efforts came into play when it was shown that although he had applied for numerous positions via LinkedIn and through resume submissions, the plaintiff had over-stated his qualifications and job experience in both, describing himself as a manager and even creating a new title for his role with the defendant: “Director of Process Improvement and Customer Development”. Furthermore, the plaintiff had restricted all of his applications to managerial positions, none of which were comparable to his actual experience as a data analyst. According to Justice Diamond, this alone justified a significant reduction in the plaintiff’s reasonable notice. At paragraph 47 of his decision,
 As a result, I cannot find that the plaintiff reasonably mitigated his damages through his creation of an inaccurate resume and his decision to apply for incomparable positions. For the most part, the plaintiff did not attempt to secure a job for which he was qualified, and he knew or ought to have known same. As a result, I reduce his reasonable notice period by two months and award the plaintiff net damages in the amount of 16 months.
The Main Take-Away
This case serves as an interesting example of reduction of reasonable notice for failing to properly mitigate damages. It is the law that an employee, on termination from his or her employment, is required to mitigate their damages by actively seeking reasonable alternative employment. However, overstating one’s experience and placing too restrictive parameters on the type of alternative employment sought can lead to a significant reduction in reasonable notice.
Scott Chambers is an employment and Human Resources Lawyer practicing at Doak Shirreff LLP in Kelowna, British Columbia. Scott advises businesses and Human Resources professionals on all employment related matters, including Termination and determination of reasonable notice. Scott can be reached at [email protected] or at 250-979-2527.
[i] The Bardal Factors / The Bardal Criteria derives from an 1960 decision of the Ontario High Court, Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C.), which held at paragraph 145,
There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.