Post Termination Earning Opportunities – Who Must Prove What?

Post-Discharge Earning Opportunities – Who Must Prove What?

Thursday, September 8, 2016

This update is intended for those involved in a wrongful dismissal case where post-employment earning opportunities are in dispute.

We have published in the past about what losses a discharged employee can claim. One seeking damages for lack of reasonable notice of termination has a corresponding duty to mitigate or minimize any resulting losses. Employees frequently claim a lack of available work. In a recent decision Munoz v. Sierra Systems Group Inc., 2016 BCCA 140 (PDF) the B.C. Court of Appeal ruled that where this is claimed, the employee must prove it. It is not up to the employer to prove the opposite.


Mr. C was employed by Sierra Systems Group as an IT consultant. A few months after he started, the Company initiated a new compensation plan. It gave employees a choice on how they would be paid. Four different compensation options were presented to employees. Mr. C chose a plan that compensated him by paying a fixed amount for each hour billed to the client. Time when the employee did not bill to a client was unpaid and was referred to as “bench time”.

Mr. C billed and was paid for a significant number of hours in the first part of 2013. But later in the year, there was no available work, so no pay.

Mr. C was given notice of termination on October 24, 2013, with his employment ending effective December 5, 2013.

Trial Decision

The trial judge found that the date the employee was effectively “on the bench” constituted the actual termination date of his employment. Specifically, the trial judge found that by placing Mr. C “on the bench” the Company had initiated a temporary layoff under the British Columbia Employment Standards Act. She also found as fact that other job opportunities for Mr. C during the reasonable notice period were “scarce”. She awarded Mr. C damages for lost pay from that date, for the full period of reasonable notice.

Continue reading to learn why the Court of Appeal overturned the trial decision and reduced the employee’s damages by 2 months.