In case the employer terminates the employment relationship unlawfully, he shall reimburse the damage caused by the termination, including the loss of salary of the employee. However, the employee shall mitigate damages by registering as job-seeker, and actively searching for other job opportunities. In its latest decision, the Hungarian Supreme Court addressed how extensive is the duty of the employee to mitigate damages.
1. Facts and the claims of the parties
The plaintiff, as an employee, worked in a three-shift work schedule for the defendant as employer, who terminated the employment relationship unlawfully.
Prior to the notification of the termination, the employee’s wife returned to her work after the maternity leave payment, given that their child had been started the nursery.
After the notification of the termination, the plaintiff registered as a job seeker at the competent state body, but after 4 months he was removed from the system since he did not comply with his obligation to cooperate.
Following the notification of the termination, the plaintiff refused several job opportunities either because he should have worked in two or three shifts and sometimes on weekends, or because of the start of working hours which was not suitable for him.
In each case, he referred to fact that he must take his child to the nursery, and that his wife could not take him because of her employment. He also referred to the impossibility of contacting his children from his previous relationship in connection with weekend work.
On the grounds of the unlawful termination of the employment relationship, the plaintiff requested payment (in the amount of more than HUF 2 million) of the lost wages and his cafeteria, after the court found in its interim judgment that the employment relationship had been terminated unlawfully.
The defendant requested the court to dismiss the action since, in his opinion, the plaintiff had not complied with his duty to mitigate damages and stressed that the situation of the employee had not changed after the termination, since his partner had started the employment earlier, and therefore could not successfully rely on it.
2. The decisions of the courts of first and second instance
The court of first instance did not find the claimant’s claim justified and reduced the amount of the damages (approximately with 90%) by the amount that the plaintiff could have earned by accepting one of the jobs that he refused.
The court referred to the fact that the change in the situation of the employee was not related to the termination of the employment relationship, since he had to take their child to the nursery even before.
Furthermore, the plaintiff rejected several job opportunities, referring only incongruent working hours, which would have provided identical job and work schedule to his previous employment.
The court of second instance, upholding the first instance decision, pointed out that the fact that the plaintiff was a registered job seeker at the competent state body could not be considered as an “active job seeking” and therefore it does not constitute the fulfilment of the duty to mitigate damages, especially since he was removed from the register after a few months for reasons he was responsible.
In his request for review, the plaintiff argued that the courts considered his duty to mitigate damages as an unlimited obligation. He stressed that based on judicial practice, when assessing whether the refusal of a job opportunity is reasonable, the qualifications and professional expectations of the employee shall be considered as well.
He stressed that it would be inequitable to expect him to accept an employment which makes impossible to him to take his child to the nursery. He also pointed out that the defendant had failed to prove that the employee failed to fulfil his duty to mitigate damages.
3. The decision of the Supreme Court
In relation with the burden of proof, the Supreme Court laid down that the injuring party, in this case the employer, shall prove the fact that the injured party, in this case the employee, failed to comply with his duty to mitigate damages. In such a case, the employer must accurately indicate the facts and circumstances grounding this failure.
In the opinion of the Supreme Court, in the case at hand the employer could prove that the employee failed to comply its duty to mitigate damages. The highest judicial forum stressed that the registration of the employee as active job-seeker is insufficient, since the plaintiff was removed from the system after 4 months because failure to comply with his obligation to cooperate with the competent state body.
The Supreme Court also agreed that the plaintiff cannot rely on difficulties concerning the taking of child to nursery as a reason for refusing other job opportunities, since the plaintiff worked in three-shifts in its original position, as well.
In view of the above, the Curia maintained the final verdict in force, based on the reason that the plaintiff had not complied with his duty to mitigate damages.
Based on the above, it is important that in case the employer wishes to refer to the breach of the employee's duty to mitigate damages, to reduce the amount of the damages, the burden of proof is on his shoulders.
If the employer can prove this successfully, although the obligation of the employee is not unlimited, the court strictly examines the fulfilment of this obligation.
In such cases, an active job seeking is expected from the employee and if he refuses a job opportunity which is largely corresponding to his qualifications and his previous job without a valid reason, it can be considered that the employee has not fulfilled his duty to mitigate damages, and the damage claim can be at least partially unfounded.
 BH 2022.2.52
 6/2016. (XI. 28.) KMK opinion
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