Canadian HR Reporter

www.hrreporter.com 25 C O L U M N S E M P L O Y M E N T L AW PRIVATE SCHOOL LEARNS ABOUT CONTRACTS IN B.C. series of one-year contracts that led to an administrative position with a probationary period did not cancel out a private school employee's entitlement to common law reasonable notice of dismissal, according to the British Columbia Supreme Court. The Satnam Education Society of British Columbia owns and operates a Sikh private school based in Surrey, B.C. Satnam hired Surinder Virk, 50, in September 1998 to be a bus driver and religious teacher. Two years later, Virk began working solely as a teacher. Virk's first teaching contract was for the school year beginning on Sept. 1, 2000 and ending on June 30, 2001. For the next seven years, he worked on one-year contracts with the same start and end date. Each contract contained a renewal clause in which Virk was to inform Satnam by April 15 if he wished to continue employment and Satnam was to inform him of renewal for the next school year or cancellation by June 30. The contracts also had a leave-of- absence clause. Satnam added a termination clause to the 2001 contract that allowed it to terminate Virk's employment with two weeks' notice or pay in lieu. This provision was carried over to subsequent contracts. In March 2007, Satnam offered Virk a vice- principal position. The terms of the job offer included a one-year probationary period, during which transfer or dismissal was "entirely at the discretion of the school." Upon comple tion of probation and a good performance review, Virk would become a "regular administrator." There was also an option of a second probationary period instead of termination if the performance review wasn't satisfactory. On April 4, 2008, Satnam informed Virk that it was pleased with his performance and offered him a job as vice-principal of a primary school. A June evaluation found his work to be satisfactory with some areas for improvement and Virk signed an administrator's contract for the 2008-09 school year. This contract had the same termination clause as Virk's previous contracts, with a renewal clause stating Virk had to notify the school by May 31 if he wished to renew. During the 2008-09 school year, Satnam had concerns over Virk's communication skills and performance. Satnam informed Virk of these concerns and stated that his probation would be extended for an additional year with a retroactive raise if he completed it. During this time, Satnam could dismiss him with cause. There was no written contract to cover this period. A May 2010 evaluation indicated several skills that needed improvement, including communication — Satnam wasn't pleased with Virk's lack of communication after he was injured in India in August 2009 and wasn't able to travel back in time for the start of the school year. Virk asked about a contract for the following school year, but on July 12, 2010, Satnam informed him that his "services have been terminated with cause" because he had failed to fix his performance deficiencies. Fixed or indefinite term? Virk sued for wrongful dismissal, claiming he was an indefinite-term employee that Satnam dismissed without cause or reasonable notice. The court found that Virk's teacher contracts were ambiguous, as they allowed termination without cause with two weeks' notice — inconsistent with a contract intended to be in effect for one year. In addition, the contracts had a leave-of-absence clause, which is associated more with an indefinite term of employment. The court also found that the administrator contracts after Virk became a vice-principal were clearly indefinite-term contracts. The initial contract set out a one-year probationary period, after which he would become a regular administrator. This implied that the contract would extend beyond the first year, and there was no wording about Satnam's discretion for renewing, just Virk's notification if he wished to continue. At the time of Virk's dismissal, there was no written contract, only Satnam's stipulation that Virk was on an additional year of probation, added the court. Since Virk was an indefinite-term employee, Virk wasn't bound by the two-week notice period established in his teacher contracts, said the court. With his 12 years of service, position, age and scarcity of similar employment, the court determined that Virk was entitled to 12 months' notice. Satnam was ordered to pay Virk 12 months' salary and benefits, minus termination pay already received and mitigation earnings during the notice period. The total owing was $75,834.11. See Virk v. Satnam Education Society of B.C., 2020 BCSC 149 (B.C. S.C.). CHRR After a series of one-year contracts, a teacher was offered a new contract with a probationary period and termination clause. Jeffrey R. Smith discusses why a court found these were inconsistent with fixed-term contracts and awarded the teacher $75,000 PRIVATE SCHOOLS IN CANADA (2014) 1,935 Number of private schools in Canada 940 Number of private schools religiously oriented 178,119 Number of students enrolled in religious private schools 65% Percentage of independent schools with fewer than 150 students Jeffrey Smith Editor of Canadian Employment Law Today Source: The Fraser Institute The terms of the job offer included a one-year probation to evaluate performance. Upon successful completion of the probation, the employee becomes a "regular administrator." A

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