Introduction
Employees who are terminated by their employers commonly find comparable, alternative work following separation. However, there are instances where an employee finds other work, but that other work is not comparable in that it is lower paying and lower ranking. When this happens, employees who are owed reasonable notice of termination from the employer that fired them sometimes argue that their notice period ought not be reduced by their earnings from their lesser role.
The Ontario Court of Appeal recently put this argument to rest in Williamson v Brandt Tractor Inc., 2026 ONCA 272 (CanLII) [Williamson]. An employee’s earnings from a lower-paying, lower-ranking job is, in fact, deductible from that employee’s reasonable notice period.
The Facts
William Williamson (“Mr. Williamson”) was a former salesperson at Brandt Tractor Inc. (“Brandt”). Brandt terminated Mr. Williamson for just cause following a complaint they received from a customer about Mr. Williamson’s sales practices (the “Complaint”). Brandt pointed to Mr. Williamson ‘s pre-existing disciplinary record, which was lengthy, in arguing that the Complaint was the final, cumulative incident that warranted just cause dismissal.
Brandt’s just cause argument failed at the court of first instance. The Ontario Superior Court of Justice held that Brandt did not establish that the Complaint against Mr. Williamson constituted a final act of misconduct sufficient to justify just cause termination. Mr. Williamson was awarded 17 months notice of termination. The Court ruled that Mr. Williamson’s reasonable notice entitlements cannot be reduced by his earnings from the other job he obtained following his termination from Brandt because it was a lower paying and lower ranking position.
Brandt appealed the lower court’s ruling. Brandt’s appeal was successful in part only. Specifically, the Ontario Court of Appeal ruled that Mr. Williamson’s earnings from his lower-ranking and lower-paying job must be deducted from his 17-month reasonable notice period, as “there is no authority for the proposition that earnings that come from an inferior position are not deductible in mitigation”.
Conclusion
Williamson is an important reminder that the duty to mitigate captures earnings from a lower paying, lower ranking job, not just a comparable one. It serves as a stark reminder that the notice period is not supposed to be a windfall—the intention is to put the dismissed employee in the position they would have been in had they not been wrongfully dismissed.
Written by: Shadé Edwards