My Employer Fired Me, Then Told Me to Come Back. Do I Have To?
Being fired is stressful enough. But some employees face an even more confusing situation: after terminating employment, the employer later says, “Come back to work.”
This often happens after an employee challenges the termination, asks for a better severance package, or starts a wrongful dismissal claim.
So, do you have to return?
Not automatically. But you should not ignore the offer either.
In Ontario, a wrongfully dismissed employee generally has a duty to mitigate their losses. That usually means making reasonable efforts to find comparable work. In some cases, mitigation may include returning to work for the same employer — but only where it is reasonable in the circumstances. The Supreme Court of Canada confirmed this principle in Evans v. Teamsters Local Union No. 31, where the Court considered when a dismissed employee may be expected to accept re-employment with the same employer.
What Is the Duty to Mitigate?
When an employee is wrongfully dismissed, the law does not usually allow them to sit back and do nothing while damages accumulate. The employee is expected to take reasonable steps to reduce their losses.
This is called the duty to mitigate.
Usually, this means looking for comparable employment. You may need to keep records of:
Jobs applied for
Recruiters contacted
Interviews attended
Networking efforts
LinkedIn messages
Job alerts
Comparable roles reviewed
Vanguard Law’s severance package review page explains that proper severance analysis should include common law entitlements, ESA minimums, benefits, bonus claims, stock awards, and negotiation strategy before an employee signs a release. Vanguard also emphasizes that severance offers often fall short of what employees may actually be owed.
Can Mitigation Mean Returning to the Same Employer?
Yes, but only in some cases.
The leading case is Evans v. Teamsters Local Union No. 31, a Supreme Court of Canada decision. The Court held that, in appropriate circumstances, a dismissed employee may be required to mitigate damages by accepting re-employment with the same employer. But the Court did not say employees must always go back.
The real question is whether a reasonable person in the employee’s position would accept the offer.
That depends on factors such as:
Whether the role is truly comparable
Whether pay, benefits, title, and duties are preserved
Whether the workplace relationship has broken down
Whether returning would be humiliating or degrading
Whether the employee was treated badly during the termination
Whether there is ongoing hostility
Whether the offer is clear and unconditional
Whether the employer is trying to force a release or waive legal rights
Whether the return is temporary, permanent, or only for the notice period
The employer usually bears the burden of proving that the employee failed to mitigate by refusing reasonable re-employment.
When Might You Have to Consider Going Back?
You may need to seriously consider the offer if:
The employer offers the same job
The same salary, benefits, seniority, and working conditions continue
The work is not demeaning or embarrassing
The relationship is not hostile or poisoned
The employer does not require you to sign away legal claims
The offer is clear and in writing
The return would be for the notice period or a comparable ongoing position
There is no discrimination, harassment, reprisal, or safety issue
In that kind of situation, refusing may create risk. The employer may argue that your severance or wrongful dismissal damages should be reduced because you could have avoided some or all of your losses by returning.
When Can You Refuse to Return?
An employee may have strong reasons to refuse if returning would be unreasonable.
For example, refusal may be justified where:
The employer demoted you
The new role is inferior
Compensation or benefits are reduced
The workplace is hostile
The termination was humiliating or bad faith
You experienced harassment or discrimination
You were asked to report to someone involved in the termination
The employer requires you to sign a release
The offer is vague or conditional
The employer refuses to confirm pay, duties, benefits, or duration
The employer is trying to use the offer as pressure in a severance negotiation
In Farwell v. Citair Inc., the Ontario Court of Appeal considered a constructive dismissal scenario involving an alternate position. Commentary on the case explains that the employee was not found to have failed to mitigate because the employer had not clearly offered him the chance to work through the notice period after he treated the reorganization as a constructive dismissal.
The case is useful because it shows that an employer cannot simply point to some possible alternate job and later say the employee should have taken it. The offer must be clear, properly timed, and reasonable.
What If the Employer Offers a Lower Position?
Be very careful.
A lower position may not be comparable work. If returning would involve humiliation, loss of status, reduced authority, reduced pay, worse benefits, or meaningfully different duties, the employee may have a strong argument that refusing was reasonable.
In Brake v. PJ-M2R Restaurant Inc., the Ontario Court of Appeal dealt with mitigation issues after a long-service employee was constructively dismissed. CanLII commentary summarizes that the employee had been offered a non-supervisory position with meaningfully inferior benefits, and the employer’s mitigation arguments were not accepted in the way it sought.
The practical lesson: employees are generally expected to look for comparable work, not accept any job at any level just because the former employer offers it.
What If the Workplace Is Toxic?
A toxic or hostile workplace can be a major reason not to return.
If the termination involved bullying, harassment, discrimination, retaliation, bad-faith conduct, threats, public humiliation, or a poisoned relationship, it may be unreasonable to expect the employee to go back.
Vanguard Law’s constructive dismissal page explains that constructive dismissal can involve fundamental unilateral changes to employment terms or intolerable workplace conditions, including major changes to pay, duties, hours, location, or toxic working conditions.
Employees should document why returning would be harmful or unreasonable. Do not rely only on emotion. Use facts, dates, emails, witnesses, and details.
What If the Employer Says, “You Are Refusing Work, So You Get No Severance”?
That may be wrong.
An employer cannot automatically erase your severance rights just because you refuse to return. The issue is whether the refusal was reasonable.
Ontario’s official termination guide confirms that employees may pursue wrongful dismissal remedies in court where they believe they were not given proper notice or compensation.
The employer may argue failure to mitigate, but that does not automatically succeed. The employer must usually show that the offer was reasonable and that a reasonable employee would have accepted it.
Questions to Ask Before Agreeing to Return
Before you say yes or no, ask for the offer in writing.
The written offer should answer:
What is the job title?
What are the duties?
Who do I report to?
Is compensation unchanged?
Are benefits unchanged?
Is seniority preserved?
Is the return permanent or temporary?
Is this working notice?
Is the employer admitting the termination was withdrawn?
Do I have to sign anything?
Do I have to release my claims?
What happens to the severance offer?
Will my employment record show continuous service?
Will there be any discipline, probation, or performance plan?
What workplace protections will be in place if there was conflict?
If the employer refuses to clarify these points, that may support the argument that the offer is not reasonable.
How Should You Respond?
Do not ignore the offer. A careful written response is usually better than silence.
A possible response may be:
“Thank you for your message. I am prepared to consider the proposed return to work. Please confirm in writing the proposed role, duties, compensation, benefits, reporting structure, work location, duration of the arrangement, whether my service will be treated as continuous, and whether you require me to sign any documents. Once I have that information, I will review the proposal and respond.”
This keeps the door open without immediately accepting.
Should You Return “Without Prejudice”?
Sometimes an employee may return temporarily while preserving their legal position. But this should be handled carefully.
Before returning, get advice on whether to state that you are returning:
Without prejudice to your claim
Under protest
For mitigation purposes only
Without agreeing that the termination was lawful
Without signing a release
Without accepting a demotion or changed terms
The wording matters. A poorly worded acceptance could weaken your wrongful dismissal claim or make it look like you accepted new terms.
What If You Already Found Another Job?
If you already found comparable employment elsewhere, you may not need to return to the former employer.
However, timing matters. If the former employer made a reasonable return-to-work offer before you accepted other work, the employer may still argue that you should have returned. If you had already accepted comparable work, the analysis may be different.
Keep written proof of your job search and new employment. Mitigation records can become important evidence.
Red Flags in a Return-to-Work Offer
Get legal advice quickly if the employer’s offer includes:
A release of claims
Reduced pay
Lower title
Loss of seniority
New probation period
New employment contract
New termination clause
Unclear duration
Vague “come back and we’ll discuss” language
A performance improvement plan
A requirement to apologize or admit wrongdoing
A threat that you will lose all severance if you refuse
A return to the same supervisor who harassed or retaliated against you
A return-to-work offer may be legitimate. It may also be a tactic to reduce severance exposure.
Speak With an Ontario Employment Lawyer Before Responding
If your employer fired you and then asked you to come back, your response can affect your severance claim.
At Vanguard Law, we help Ontario employees assess wrongful dismissal claims, severance offers, re-employment proposals, constructive dismissal risks, and mitigation strategy. Vanguard Law represents employees in wrongful dismissal, severance negotiations, constructive dismissal, discrimination, long-term disability denials, and related employment disputes.
Before accepting or refusing a return-to-work offer, speak with Vanguard Law.
Contact Vanguard Law today for advice on your severance and re-employment options.
FAQ Section
Do I have to go back if my employer fired me and then offered my job back?
Not automatically. You may have to consider the offer if it is clear, comparable, non-humiliating, and reasonable. But you may be able to refuse if the role is inferior, the workplace is hostile, or the offer requires you to give up legal rights.
Can refusing to return reduce my severance?
Yes, it can in some cases. If a court finds that a reasonable person would have accepted the employer’s re-employment offer, your wrongful dismissal damages may be reduced. But the employer must prove the refusal was unreasonable.
What is mitigation in wrongful dismissal?
Mitigation means taking reasonable steps to reduce your losses after being dismissed. Usually, this means looking for comparable work. In some cases, it may include considering re-employment with the same employer.
Can my employer make me sign a release before I return?
That is a red flag. If the employer requires you to sign a release, new employment contract, or waiver before returning, get legal advice before signing anything.
What if returning would be embarrassing or humiliating?
Humiliation, loss of dignity, hostility, and damaged workplace relationships can be relevant. Employees are not always required to return to a workplace where doing so would be unreasonable.
Should I respond to the offer in writing?
Yes. Ask for the role, pay, duties, benefits, reporting structure, seniority, duration, and any documents the employer wants you to sign. Avoid rejecting the offer without first understanding the details.