Canadian HR Reporter

CANADIAN HR REPORTER December 12, 2016 EMPLOYMENT LAW 5 Jeff rey Smith LEGAL VIEW LOOKING FOR A SUPPLIER OR VENDOR? Visit hrreporter.com/hr-vendors-guide Salary continuance ends with new position Former employer asked to make up diff erence between old salary, new part-time job A British Columbia employer is not obli- gated to subsidize a dismissed employee's continuing education through salary con- tinuance 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 director of international programs and exchanges by Kwantlen Poly- technic University — a university with campuses in Surrey, Langley, Richmond and Cloverdale, B.C. — in 2007. In October 2013, Schinnerl requested and was granted a one- year education leave so she could pursue a PhD in immigration policy as it related to international students. Her leave began on Sept. 1, 2014, and was expected to end one year later. However, it was ex- tended until March 1, 2016, so she could complete her doctoral stud- ies. e leave policy stated that the cost of the leave was a debt owed by Schinnerl, but the university waived the debt. Schinnerl returned to work on March 1, 2016, but was termi- nated from her employment due to restructuring. e university off ered her continuation of salary and benefi ts for 10 months until Dec. 31, as long as Schinnerl con- ducted reasonable job searches and advised the school if she ob- tained new employment. According to Schinnerl's ter- mination agreement, if she found new employment with a "public sector employer," as defi ned 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 dif- ference for the balance of the sal- ary continuance period. If she found employment with an employer that wasn't a public sector employer, the university would pay her a lump-sum pay- ment equal to 50 per cent of the remaining amount she would have received until the end of the salary continuance period. Schinnerl didn't accept the termination agreement, but the university paid her salary continu- ance as stipulated anyway. Nearly one month after her ter- mination, Schinnerl applied for a newly created position — direc- tor of global engagement — at another college that was a public sector employer that would pay her more than what she earned with Kwantlen. e college hired her with a start date of June 13. Schinnerl requested that she work only part-time until Dec. 31 so she could complete the doc- toral studies she had been doing before her dismissal by Kwantlen. e new college agreed. Kwantlen ended Schinnerl's salary continuation the day she was hired by the other col- lege, even though her part-time earnings until Dec. 31 were less than her salary continuation payments. e university took the position that Schinnerl was required to accept the full-time position to meet her duty to mitigate her damages, and work- ing part-time for the first six months was a personal decision it shouldn't have to subsidize. The court noted that the 10-month notice period Kwantlen provided upon Schinnerl's dis- missal was appropriate for her service time of nine-and-a-half years, and her position of impor- tance. It was also clear the new position for which she applied at the college was a full-time posi- tion and she just asked to work part-time while she completed her studies — which her new em- ployer accommodated. e court found Schinnerl was entitled to negotiate a change to part-time work so she could complete her doctoral studies, but it was a separate matter from her duty to mitigate her damages stemming from her dismissal from Kwantlen. She accepted a full-time position, which fulfi lled her duty to mitigate, but asking Kwantlen to continue to pay her during the notice period for her dismissal would be essentially "claiming that her former em- ployer should pay for part of her continuing education," said the court. "It is true that the education commenced with (Kwantlen) but its obligation to contribute ended under its educational leave policy as well as with (Schinnerl's) dismissal." Schinnerl was entitled to con- sider her long-term interests with her continuing education, found the court, but Kwantlen wasn't ob- ligated to pay for these interests, nor was it obligated to place her in "the best possible position in relation to her long-term career objective following her dismissal." Th e co u r t d e te r m i n e d Kwantlen's obligation for Schin- nerl's salary continuance ended the day she started her position with the new college — June 13, 2016 — as Schinnerl had the op- portunity to work full-time and mitigate all of her damages but chose not to for personal reasons. For more information see: • Schinnerl v. Kwantlen Polytech- nic University, 2016 CarswellBC 3074 (B.C. S.C.). Jeff rey R. Smith is the editor of Ca- nadian Employment Law Today. For more information, visit www.employ- mentlawtoday.com. e woman wanted to work part-time while she completed her studies. Credit: Google Street View

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