Worker found employment before notice period was up, but decided to work part-time while completing PhD
A British Columbia employer is not obligated to continue paying a dismissed employee during the notice period when the employee found a new full-time job but chose only to work part-time, the B.C. Supreme Court has ruled.
Sandra Schinnerl, 48, was hired as the director of international programs and exchanges by Kwantlen Polytechnic University — a university with campuses in Surry, Langley, Richmond and Cloverdale, B.C. — in April 2007. She started in August 2007.
In October 2013, Schinnerl was granted a one-year education leave so she could pursue a PhD in immigration policy as it relates to international students. Her leave began on Sept. 1, 2014, and was extended until March 1, 2016, so she could complete her studies.
Schinnerl returned to work on March 1, 2016, but was terminated due to restructuring. The university offered her continuation of salary and benefits for 10 months until Dec. 31, as long as Shinnerl conducted reasonable job searches.
According to the termination agreement, if she found new employment with a “public sector employer” as defined in the B.C. Public Sector Employers Act that paid her less than her salary with the university, the university would continue to pay her the difference for the balance of the notice period. If she found employment with an employer that wasn’t a “public sector employer,” Kwantlen would pay her a lump sum equal to 50 per cent of the remaining amount.
Schinnerl applied for a position at another college that was a public sector employer that would pay her more than what she had earned with Kwantlen. She was hired with a start date of June 13, but she requested that she work only part-time until Dec. 31 so she could complete her doctoral studies.
Kwantlen stopped paying Schinnerl the day she was hired by the other college, though her part-time earnings were less than her salary continuation payments. The university felt that Schinnerl was required to accept the full-time position to meet her duty to mitigate her damages, and working part-time for the first six months was her personal decision.
The court noted that the 10-month notice period Kwantlen provided was appropriate for Schinnerl's service time and position. It was also clear that the new position was a full-time position and she just asked to work part-time while she completed her studies — which her new employer accommodated.
The court found Schinnerl was entitled to negotiate a change to her new job, but it was a separate matter from her duty to mitigate. She accepted a full-time position, which fulfilled her duty to mitigate her dismissal damages, but asking Kwantlen to continue paying her during the notice period would be essentially “claiming that her former employer should pay for part of her continuing education,” the court said.
The court found Schinnerl was entitled to consider her long-term interests, but Kwantlen wasn’t obligated to pay for them, nor was it obligated to place her in “the best possible position in relation to her long-term career objective following her dismissal.”
