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Twitter saga: Here are your options if your boss tries to unfire you

An image of new Twitter owner Elon Musk is seen surrounded by Twitter logos in this photo illustration in Warsaw, Poland on 08 November, 2022. (Photo by STR/NurPhoto via Getty Images)
Reports indicate shortly after Elon Musk ordered fifty per cent of Twitter's workforce to be let go, the company asked some laid-off employees to return to work. (Photo by STR/NurPhoto via Getty Images)

Employment lawyers are getting a refresher on the rare practice of unfiring, after Twitter moved to reverse some layoff decisions at the social media company earlier this month.

"It's not something that we hear about happening very often," said Brittany Taylor, a partner at Rudner Law, in a phone interview with Yahoo Finance Canada.

Usually, companies plan and prepare for layoffs for a long period of time before they actually take place, she says, which is one of the main reasons why unfirings are "really uncommon."

Canadian Twitter staff members were among those swept up in the mass layoffs that saw the firm's workforce cut in half after Elon Musk took the reins.

Shortly after, it was reported that a number of employees were being asked to return, though it's unclear whether any of those workers were Canadian.

"Generally speaking, as an employer, you don't want to be firing someone and then changing your mind," Taylor said. "Even if you're on side legally, just from a practical perspective, it puts a real strain on the working relationship and makes it very challenging to retain talent."

Under Canadian employment rules, an employer does have the ability to retract a termination, but only if the employee acknowledges or agrees to the retraction. If not, the employee is left with a number of potentially tough choices to make.

The main issue surrounds a concept called the duty to mitigate losses, Taylor says.

"When an employee is dismissed, they have an obligation at law to take all reasonable steps to try to mitigate their damages, or reduce the damages, that they are experiencing, by trying to find comparable replacement employment as quickly as possible," she explained. "This could include accepting an offer of re-employment from your former employer."

"You have to look at the fact that the employee may really not be in a position to refuse the offer to come back to work because of their mitigation obligations."

However, there are a few exceptions to the rule. If the company made a spectacle of the firing, such as marching the employee out the door, or if the workplace situation was toxic, the employee has grounds to reject the boss's offer to return to their old job.

Proving a workplace was toxic can be difficult, though.

"We always say, as lawyers, it's not what's true, it's what you can prove. Because that's how the law functions – it's on evidence," she said.

Most of the time, proving a toxic work environment becomes a lot of "he-said-she-said," so if an employee is going to refuse to come back, they'll need to think about what evidence they have to support their claims, she says, adding that sometimes the evidence comes down to the credibility of one person versus another.

Aside from an unsuitable work environment, if an employee refuses to return to the job, Taylor says there's a chance it could work against them if they decide to sue the employer, because of the duty to mitigate. In the court's eyes, a judge might feel the employee could've stemmed their income losses by returning to the job and could award a lower amount of money to the employee.

However, she says it's only in extreme cases where a judge might rule that an employee didn't do enough to stem their income losses.

"When we think about a situation where an employee has failed to mitigate their damages, and to be honest, it doesn't happen very often in Canada because, again, the expectation is not that you are going to be a superhero in terms of finding a new job, it's just that you're going to behave reasonably. So it's odd that we have courts actually finding people who have failed to mitigate their damages," she said.

First steps after an unfiring

For former employees, from Twitter or otherwise, who are faced with their bosses trying to get them to come back to work, Taylor says the first question they should ask themselves is whether they want to go back, and assess their prospects for finding a new job if they don't return.

"I think a lot of that would have to do with timing. When we're talking about this Twitter situation, it's a very, very quick turnaround between when the firing happened and when they're maybe changing their minds," she said.

"But there have been cases where there's actually a larger gap, maybe a whole month or longer has passed since the termination occurred. So as an employee, you might be in a situation where you have another opportunity lined up already, maybe you've already been offered another job. Those could be reasons why you might say no, I'm not coming back."

Michelle Zadikian is a senior reporter at Yahoo Finance Canada. Follow her on Twitter @m_zadikian.

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