What happened
When an employee is wrongfully dismissed, the common law expects them to make reasonable efforts to find comparable work. That is the duty to mitigate. Courts have usually said an employee only has to consider re-employment from the former employer if the offer came after the termination. An Ontario decision, Dussault v Imperial Oil, went so far as to call a pre-termination offer fatal to a mitigation argument, as reported by Talent Canada in a column by employment lawyer John Hyde.
Brown v General Electric Canada points the other way. Brown was an engineer owed a $300,000 retention bonus if he stayed a full-time GE employee for five years after GE bought his company. When GE considered selling the business to Wabtec, Wabtec offered him a job on the same terms. He was reassured the bonus would be honoured and was offered a revised letter to say so. He refused, and the sale closed in February 2019 without him.
The trial court found he was constructively dismissed by GE. It also found he failed to mitigate, because refusing a near-identical offer was unreasonable. Timing was a factor, not a decisive one, and the offer and the termination were practically concurrent. He recovered only a pro-rated share of the bonus and no reasonable notice damages. The Manitoba Court of Appeal upheld that result.
Why it matters if you are hiring
This matters most in business sales, restructurings and plant or site transfers, where staff move to a new employer or role. The ruling suggests a genuine offer of comparable work can reduce what a dismissed employee is owed, even when it arrives before the termination date.
The case turned on specific facts: identical terms, written reassurance on the bonus and near-simultaneous timing. It does not make pre-termination offers safe in general. Courts still look at context, and an acrimonious relationship or a poor work environment can make a return to the former employer unreasonable to expect.
For hiring managers, the practical point is that how you document a transition affects both your legal exposure and your ability to keep key people. Roles tied to retention bonuses, such as senior engineers and technical leads, need clear written terms when ownership changes.
One thing to do this week
Review any transfer or restructuring offer letters you have out or planned. Where an offer was made before a termination, have it reissued in writing after the termination date on the same terms, and check with your employment lawyer first.
Traverse helps employers across Canada find and place the experienced people they need, so a transition or restructuring does not leave key roles empty while the legal side is settled.