Connect

Legal News

Schinnerl v. Kwantlen Polytechnic University, 2016 BCSC 2026
January 20, 2017
Author(s): Andrew R. McDaniel

Following dismissal, an employee terminated without cause is required to take reasonable steps to obtain equivalent employment elsewhere, and to accept such employment if it is available. A recent decision of the British Columbia Supreme Court makes clear that this duty will not be satisfied by accepting an offer of part-time employment where a similar full-time opportunity is also available.

In Schinnerl v. Kwantlen Polytechnic University, 2016 BCSC 2026, the plaintiff was dismissed without cause from her employment with the defendant Kwantlen Polytechnic University (KPU) on March 2, 2016. The University offered salary continuation and benefits for a ten month period following her dismissal. Although the offer was rejected, the University paid the plaintiff in accordance with its terms. A term of the offer was that, if the plaintiff obtained employment with a public sector employer and earned less than in her position with the University, KPU would pay the shortfall during the remainder of the salary continuance period.

Following her termination, the plaintiff learned of an employment opportunity at Douglas College, a public sector employer. She applied for the position and was the successful candidate agreeing to begin work on June 13, 2016. However, to facilitate her doctoral studies, she arranged to begin work on a part-time basis from June 13, 2016, to December 31, 2016, after which she would assume a full-time position. The plaintiff’s full-time salary in her new role at Douglas College was greater than that which she earned working at the University. KPU ended the salary continuation effective June 1, 2016.

The main issue in the case is whether the plaintiff acted reasonably by working part-time in order to complete her doctoral studies, or whether she was required to accept the full-time position offered. The plaintiff took the position that it was reasonable in the circumstances to work part-time while completing her studies, arguing that this was consistent with the duty to mitigate because the duty is not an obligation to act in the best interests of the defendant. The defendant countered that the plaintiff’s decision to forego an offer of full-time equivalent employment was unreasonable and inconsistent with the duty to mitigate her damages fully.

Mr. Justice Steeves found that while the plaintiff was entitled to choose not to take full-time employment, the cost of that choice should not lie with the defendant employer. The duty to mitigate requires the dismissed employee to take such steps as a reasonable person in the circumstances would take to maintain his or her income and position in his or her respective industry, trade or profession. At paragraphs 36-37, Justice Steeves summarized his findings (at 36-37):

 [36] In my view, the plaintiff was certainly entitled to negotiate a change from full‑time to part-time work so she could get closer to completion of her PhD studies. However, that is a separate matter from her duty to mitigate the damages she is entitled to from her dismissal by the defendant. By turning down full-time work at Douglas College but then seeking damages for full-time work she is essentially claiming that her former employer should pay for part of her continuing education. It is true that the education commenced with the defendant but its obligation to contribute ended under its educational leave policy as well as with the plaintiff’s dismissal.

[37] I can agree with the plaintiff that a dismissed employee is entitled to consider her long-term interests but I do not agree this means her former employer is required to pay for the interests of the plaintiff at issue here. Nor do I agree that the plaintiff is entitled to be placed in the best possible position in relation to her long-term career objective following her dismissal. …

 Accordingly, the University’s obligation to pay notice to the plaintiff ended on June 13, 2016. This was the date that the plaintiff had the opportunity to work full-time and mitigate all of her damages.

It is clear that the duty to mitigate must be viewed from an objective perspective as opposed to the subjective perspective of the dismissed employee. While a dismissed employee is entitled to pursue her own self-interest, only objectively reasonable attempts to maintain the income and position within the employee’s respective industry will satisfy the duty to mitigate.

Questions relating to the content of this article may be directed to Dianne Rideout.