Mitigation Issues

Waiver

In the past, prior to Mifsud, the employer was able to plead that once the variation of a fundamental term had been effected, the employee’s tacit acceptance of the new position condoned or accepted the revisions and hence the employee could not thereafter protest the variation. This principle, of course, is at odds with the plea that the employee ought to have remained in the demoted position to mitigate the claim.

The B.C. Court of Appeal dealt with this argument, in obiter, in Cayen v Woodwards, as it found no constructive dismissal in the case. In that instance, Chief Justice McEachern stated that a “very heavy burden would rest upon the employer to show that there was a real waiver, regardless of whether constructive dismissal was asserted at the time of transfer or not”. This would be the case at least until the expiry of a reasonable notice period, presumably after which there could be no incremental claim.