Mitigation and Accommodation in the Modern Workplace
The realm of employment law continues to change rapidly, especially after the upheaval caused by the COVID-19 pandemic. Employers are facing uncertainty regarding how to implement a return-to-office mandate (see our previous article for more on that topic).
Recent jurisprudence provides guidance on where employers might be liable for wrongful termination or the consequences of an employee’s conduct in a wrongful dismissal action. Courts are placing more weight on an employees’ efforts to mitigate losses after termination. Employers must also show said mitigation was insufficient for full damages. Additionally, accommodation of an employee’s conditions has increasingly emphasized the need for mutual communication between employers and employees.
Mitigation of Dismissal by Applying for Many New Positions
In Kondaj v Crossbridge Condominium Services Ltd, Mr. Kondaj was terminated from his position as a building manager after his employer’s contract with the property ended, and the new company declined to offer him employment.[1] Having not received any common law notice or pay, he claimed against both companies for his appropriate notice. Notably, after his termination, Kondaj applied to over as many as 170 positions, some of which were more senior than his previous job or had qualifications which he likely lacked.[2] The defendants cited this as evidence that he failed to mitigate his losses, suggesting that proper mitigation meant applying to jobs he had a reasonable chance of being hired for.
The court rejected this defence. The court decided that:
- the “vast majority of” his applications were for positions comparable to his old job;
- Kondaj applying to positions above his skill level was interpreted in his favour, showing a determination to find new employment however possible.[3]
- the employer failing to provide a job posting that Kondaj “should have” applied for was militant against the employer’s position; and
- The judge clarified that employees are not expected to accept “inferior” positions when mitigating.
Kondaj was awarded 10 months of notice.
Employers Can Be Punished for Harming the Employee’s Mitigation Efforts
Another recent case, Carroll v Oracle Canada ULC, demonstrates the high burden placed on employers to give their employees a chance to mitigate. The employer’s failure to provide its former employee a positive reference letter made it more difficult for him to find a new job. The judge described the letter provided as “damning” for a job hunt, and that it suggested Mr. Carroll was “mediocre or problematic”.[4]
If an employer wants to rely on the mitigation defence to pay lower notice, choosing to harm the employee’s mitigation efforts will have a detrimental effect on the employer’s defence.
The Duty to Accommodate
An employer’s failure to accommodate their employee’s condition can be a strong argument supporting a constructive dismissal claim, or a claim for human rights damages. However, while an employer must make efforts to create a suitable work environment, so too must their employees meet their obligations by complying with reasonable procedures and providing adequate records of their needs. Failure to do so can lead to one’s claim being dismissed.
See Poesl v Sharon Veterinary Clinic Professional Corporation, in which an employee stopped coming to work following threats made to the clinic by a former client’s partner.[5] She provided a doctor’s note that indicated she could not return for medical reasons until the client was formally terminated.[6] The issue was whether the employee’s demands were unreasonable and whether the clinic had taken sufficient steps to accommodate her.
In this case, the employee’s refusal to work was unjustified, as her medical evidence needed to be stronger than a single doctor’s note. Meanwhile, the clinic had acted reasonably to ensure the client’s partner was not a threat, dismissing any grounds for moral or human rights damages.[7] While employees have the right to request accommodations, they cannot make demands that go beyond what their employee is reasonably expected to provide.
However, recent cases also suggest that work-from-home accommodations are increasingly normalized after COVID. In an arbitration, Ontario Power Generation v Power Workers’ Union, a union employee requested to work remotely four days a week based on his severe psychological conditions, with his union filing a grievance when he was refused.[8] This claim was based on the general duty to accommodate, as a direct application to the Human Rights Tribunal of Ontario was dismissed for lacking jurisdiction. Though his employer argued it had already met its obligations, the arbitrator found it was unreasonable to not let him work mostly from home. To manage his in-office presence would be far more troublesome than simply meeting his preferred work schedule, and an employee’s own duty to accommodate ends where doing so would put themselves in harm’s way.
At Walker Law, we continue to follow the trends in employment law, so that we may be prepared for changes and can guide our clients accordingly. If you are interested in knowing your rights and obligations in the workplace, please contact our team of experienced litigation lawyers for a consultation.
[1] Kondaj v Crossbridge Condominium Services Ltd , 2025 ONSC 3905 [Kondaj].
[2] Kondaj at para 74.
[3] Kondaj at para 74.
[4] Carroll v Oracle Canada ULC, 2025 ONSC 4889 at para 30-33.
[5] Poesl v Sharon Veterinary Clinic Professional Corporation, 2025 ONSC 622 [Poesl].
[6] Poesl at para 15.
[7] Poesl at para 47.
[8] Ontario Power Generation v Power Workers’ Union, 2026 CanLII 27365.