I often hear from employees who, after learning their position is at risk due to a merger or restructuring, are offered a new role with the acquiring company.
The question that follows is always the same: “If I turn down this offer and am then terminated, can I still claim damages for wrongful dismissal?” The recent Manitoba Court of Appeal decision in Brown v. General Electric Canada (2025 MBCA 37) provides a clear-and cautionary-answer.
Mr. Brown was a valued engineer at GE Transportation, a company that was acquired by Wabtec. As part of the transition, Wabtec offered Mr. Brown a job that was practically identical to his existing role, with assurances that his compensation, including bonuses, would be protected.
Mr. Brown, however, declined the offer, believing that accepting it might jeopardize his eligibility for a substantial bonus and potentially breach a restrictive covenant. Days later, the sale closed, and Mr. Brown’s employment with GE was terminated. Importantly, Wabtec did not re-extend the job offer after the termination.
Mr. Brown sued for wrongful dismissal, arguing that since the offer from Wabtec was made before his actual termination and not renewed after, he was not obligated to accept it as part of his duty to mitigate his damages.
The Court disagreed. It found that Mr. Brown’s refusal of the Wabtec offer amounted to a failure to mitigate his damages. The judge noted that the timing of the offer-whether it was made before or after the termination-was not decisive in this case.
What mattered was the practical reality: Wabtec wanted Mr. Brown to continue in his role and had not filled the position, suggesting they would likely have renewed the offer if Mr. Brown had shown interest after his termination. The Court emphasized that a reasonable person in Mr. Brown’s position would have reached out to see if the offer was still available, especially since the new job was comparable in every material respect.
In wrongful dismissal law, employees who are terminated have a legal obligation to take reasonable steps to reduce their losses-this is known as the duty to mitigate. That usually means seeking and accepting comparable employment if it’s available. If an employee unreasonably refuses a comparable job offer, courts can reduce or even eliminate any damages awarded for wrongful dismissal.
I’ve seen similar situations. For example, one of our clients was offered a nearly identical position with a new owner after a business sale. The client hesitated, worried about changes in workplace culture and minor differences in benefits. We advised them that unless there was a significant and legitimate reason to refuse the offer-such as a substantial pay cut, a demotion, or a toxic environment-they risked being found to have failed to mitigate their damages, just like Mr. Brown.
The Brown case is a powerful reminder that:
• The duty to mitigate is not just about what happens after you’re let go. If you know your job is ending and are offered a comparable role-even before your official termination-you must seriously consider it.
• Concerns about bonuses or restrictive covenants must be grounded in reality. In Brown’s case, the Court found that Wabtec had addressed his concerns, and there was no real risk to his bonus or breach of contract.
• If you reject a comparable offer, you should document your reasons and seek legal advice. If the offer truly isn’t comparable, or there are legitimate barriers, a court may agree that refusal was reasonable-but the burden is on you to prove it.
If you’re offered a new job as part of a merger or sale, don’t make a hasty decision. I recommend:
• Reviewing the offer carefully with an employment lawyer to understand the terms and any potential risks.
• Communicating your concerns to the new employer and seeing if they can be addressed.
• Keeping records of all offers, correspondence, and reasons for your decisions.
Share via:
Hi! beautiful people. I`m an authtor of this blog. Read our post – stay with us
Severance Package Red Flags” Checklist
Copyright © 2025 All Rights Reserved By Thrive Law
