Canadian HR Reporter

E M P L O Y M E N T L AW JOB OFFER SETS CONTRACT, NOT HANDBOOK British Columbia worker is entitled to common law notice damages for his dismissal because a termination provision limiting notice to legislative minimums wasn't given to him until after he began working, the B.C. Provincial Court has ruled. Amr Shehata, 39, applied for a position with Ashton College — a private, post-secondary college in Vancouver — in the fall of 2018. The college offered him the position of senior educational administrator and told him that his employment would begin with a probationary period. During this period, if it was determined he wasn't a good fit for the job, Shehata would be terminated. Shehata asked what would happen after the probationary period ended and was told that the college "would follow employment standards." Shehata asked for clarification on the notice period for termination or resignation, to which the college replied that it normally accepted two weeks' notice for resignation and, for termination, "we have to calculate how many weeks of notice is an employee entitled to, keeping in mind the B.C. Employment Standards Act [ESA]." The offer of employment didn' t include information on notice of termination, but it stated that "your employment is also subject to our existing conditions of employment which are more fully set out in our employee handbook." It added that if the employee handbook didn' t include all the terms of his employment, then the terms of the ESA would apply. Shehata accepted the employment offer and started work at the college on Nov. 19, 2018. After Shehata started working, the college gave him the employee handbook. The handbook set out that, in the event of a termination without cause, the college would provide one week's pay after three months of employment, two weeks' pay after 12 months of employment and three weeks' pay after three years of employment. For each additional year of employment, one week's pay would be added, to a maximum of eight weeks. These were all the same as the minimum requirements in the ESA. Four-and-a-half months later, the college terminated Shehata's employment effective April 4, 2019, providing him with one week's pay in lieu of notice. Shehata asked why he was being paid for only one week, but the college didn't provide an answer. Shehata then sued for wrongful dismissal, claiming he hadn't waived his common law notice rights. Handbook follows offer of employment The court noted that the college told Shehata before he was hired that it would "follow employment standards" for the notice period of termination. However, the employee handbook with the details on what that meant wasn't given to him until after he had accepted the offer of employment. Therefore, the employment contract was in place before Shehata received the handbook, said the court. The discussions between Shehata and the college about the ESA before the job offer didn't refer to Shehata waiving his common law termination notice requirements, said the court. Since "any waiver of such a right must be clearly discussed and agreed to if it is to bind Mr. Shehata," the contract in place when Shehata accepted the offer of employment didn't include a provision limiting termination notice to ESA minimums. The court found that there were no factors to boost Shehata's notice entitlement, as he was unemployed at the time he applied for the position and not induced by the college, and Shehata's job search efforts after his dismissal focused on teaching positions for which he had limited experience rather than another educational management position. Therefore, there was no evidence of a difficult job market for similar employment, although Shehata made sufficient attempts at mitigating his damages by applying for jobs within three weeks of his dismissal from Ashton College. The court determined that Shehata was entitled to two months' notice. The college was ordered to pay Shehata two months' salary in lieu of notice minus the one week of wages he already received and a small amount of income he earned from a side business, for a total of $7,108. The college argued that earnings from a job at another college starting in September 2019 should be deducted from the damages, but the court declined, noting that it was outside the two-month reasonable notice period. For more information, see: Shehata v. Ashton College Ltd., 2020 BCPC 37 (B.C. Prov. Ct.). CHRR Employment contracts can ask employees to waive their right to common law notice, but they're no good if they aren't part of a job offer when it's accepted — something a British Columbia college discovered after it fired an administrator, writes Jeffrey R. Smith TOP QUESTIONS OF JOB CANDIDATES Jeffrey Smith Editor of Canadian Employment Law Today Source: LinkedIn Talent Solutions The discussions between the worker and the employer about the ESA before the job offer didn't refer to Shehata waiving his common law termination notice requirements. A 52% estimated salary range 45% company culture 33% company mission 69% role responsibilities C O L U M N S 46 www.hrreporter.com

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