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June 2022 – Can You Claim Damages if You are Fired and Rehired by the Same Employer

wrongful dismissal lawyers calgary

Not a lot of people can say that they have the perfect job. No matter how much we like our work, there is always something that gets on our nerves or that we wish could be different. Those who have no complaints about their employer or employees, however, should be considered lucky.

In employment law, there are countless situations that can lead to disagreements between both parties, and knowing what to do when you caught yourself in a situation like this makes all the difference.

One such scenario is being fired, and then rehired by the same employer. Most people do not know what rights and responsibilities they have in cases like this, and may not act in favour of their best interests by simply not being familiarised with the topic. 

The one question that everyone will have in mind, however, is: Can you claim damages? Let’s explore this topic with a few instances that may or may not be in your favour when claiming it.

Not Being Given Notice

An unfortunately rather common occurrence is that a person who is rehired will not be given proper notice in case they are, once again, fired from their workplace. 

What happens is that employers, maliciously or not, will only consider their second period of work as valid when firing the same employer for a second time. In Canadian courts, however, it is possible to fight for your rights and claim damages if this happens. It will all depend on the arguments that your employment lawyers Calgary will present, but if the judge sees that you were wronged, they can give the cause to you. 

For this to happen, you will need to prove that the time period between being hired and rehired was not expressive. That is, between one and another, not as much time has passed, and it is enough to consider your work period as a single unit, instead of two different ones. Your employer may be sentenced to pay extra for damages if it is proven that they did it on purpose or to take advantage of you. 

If, on the other hand, you were fired—or asked to quit—and a long time has passed, with you either working somewhere else or completing studies, etc, the court may understand that there are no confusing two different periods, and that only your last one should be used as a reference for your termination rights. That is, assuming that the first dismissal was not wrongful. 

In any case, lawyers in Calgary are equipped to best serve their clients and will explain to you all of the strengths and weaknesses of your case.

Should You Accept to be Rehired?

This is a tricky question. If you were fired, and your employer offers you a job back, you should speak to your lawyer before accepting it. 

You may be entitled to damages if you prove that you tried your best to mitigate the harm done to you. Even if you consider yourself the victim of the situation, you still need to try to cooperate to avoid making the situation worse. So, if after you are fired, your employer offers you your job back, or another position within the company, this could in theory help you get back on your feet and not suffer as much financial and emotional distress. You may still take the case to court and claim damages, but the amount of money that you can get from it may be smaller than you would like.

However, you do not need to accept the job to win damages. In Canada, courts base their decisions on Evans v. Teamsters Local Union No. 31, which serves as a guide to determine whether or not it is fair demanding that an employee accepts work for the same employer. Because of this case, the court established a few key points to consider when analysing the new job offers. 

The first one is easy to assess: is payment the same? If the worker has been offered a job that greatly decreases their previous income, courts may be inclined to consider that no, no reasonable person would have accepted that offer. 

Then, it is necessary to look into the job’s conditions. Offering a position that is considered to be at a lower hierarchical or technical level than previously occupied by the worker can lead to damages. This is especially true if you are expected to report to someone who was once your subordinate, as it is considered an embarrassment to the worker.

Finally, the court will consider if the job offer would pose any threats to the employee’s rights. This can vary from commission earnings to bonuses, vacations and notice time in an eventual termination. 

If those conditions are met, the judge may decide that the employee was not expected to accept the new job offer, and that they did not fail to mitigate any harm done to them. In general, what is truly analysed is whether or not the job offer offended the dignity of the worker and if it may have been done maliciously as retaliation for something that the employee has done—seeking legal action, for example.

 

Employment law is very complex, and should be studied in a case-to-case matter. Everyone will have a different experience in their workplace, and the best way to protect yourself is to keep gathering documentation that you think could be useful and legal to present you your lawyer in the future. So if you are fired and then offered a job offer in the same company, speak to a professional first.

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