In Chevalier v. Active Tire & Auto Centre Inc., Earl Chevalier was the service manager of a Speedy Muffler location in Niagara Falls, Ont., that was purchased by Active Tire & Auto Centre Inc. To reduce its expenses, Active laid off Chevalier, who was 55 years old and had been employed by Speedy for 33 years, and paid him just four weeks' severance.

Within two weeks, Chevalier had retained counsel and issued a Statement of Claim for wrongful dismissal to Active Tire.

Not surprisingly, Active had obtained no legal advice and believed it could lay Chevalier off without consequences. Only after being sued did the company seek legal advice.

It quickly apologized and offered Chevalier his job back on the same terms he had with Speedy. Chevalier rejected the offer claiming he had no obligation to return. He also said he had been harassed before his dismissal and that Active's offer to return was disingenuous, having been made only after he had sued. That, he said, made the workplace poisonous and returning would be humiliating.

The court noted that wrongfully dismissed employees have a general duty to mitigate their losses by finding comparable work. Clearly his previous job was just such work.

"The salary offered was the same, the working conditions were not substantially different or the work demeaning, and the personal relationships involved are not acrimonious," the court said.

Active's decision to lay off Chevalier was an innocent mistake and its previous performance management of Chevalier was not harassment. Nor did the lawsuit "create a poisonous work environment," it said. Therefore, Chevalier should have accepted Active's offer.

This case holds some valuable lessons for employers and employees:

• Employees must understand the duty to mitigate and be ready to consider an offer to return.
• Employers faced with dismissal lawsuits should consider whether it is desirable and appropriate to invite the employee to return.
• If the employer invites the employee back, it should apologize if there has been any error or misunderstanding and the offer should be made quickly and courteously to avoid the employee alleging the employer created a poisonous work environment.
• Any offer to return should be on the same terms and conditions as those that existed previously.
• If the constructive dismissal resulted in any damages by the employee, such as a loss of income, the employer should offer to cover such damages.
• Requiring an employee to return to work can be a powerful weapon when a dismissal has been mishandled. It should not be overlooked.

Note: This is a reprint of an article by Howard Levitt of Levitt & Grosman LLP.