Yes, You DO Have The Right to Negotiate Pay For Additional Work!

by Samfiru Tumarkin

Wednesday, June 29th, 2016 at 6:26 pm

A recent case successfully handled by Samfiru Tumarkin LLP involved a legal assistant who had spent almost 16 years working for a law office and was offered a “take it or leave it” offer from the appellant’s successor. When she responded to the offer with a request for a raise and some further clarification regarding the terms of employment, the offer was rescinded. The appellant argued that, in failing to accept the offer “as is”, the respondent had failed to mitigate her damages. The Divisional Court upheld the Motions Judge’s finding that the conditions of employment were sufficiently different, in a negative way, to justify the Respondent raising questions for clarification and attempting to negotiate a raise. As such, the Respondent was entitled to fourteen (14) months of pay in lieu of notice.


The decision is important for several reasons. The first is the Divisional Court’s affirmation that summary judgment  is appropriate for wrongful dismissal actions wherein the facts are largely undisputed. The Divisional Court also touched on considerations of proportionality, and how same can and should factor into the analysis of whether or not matter is appropriate for summary judgment.


Another reason why it is important relates both to employers and employees, directly touching on the contentious issue of mitigation. In this case, it was found that the Respondent was right to “gamble” the chance that the job might still be on the table after making a counter-offer, but the decision does seem to hinge, at least somewhat, on the fact that the offer was not for comparable employment in the first place. That is, had a truly comparable offer been put on the table, and the Respondent merely tried to negotiate a raise, such a counteroffer may have been viewed by a court as being opportunistic rather than rightly concerned about the terms being proposed.

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