IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           This is a wrongful dismissal claim. The claimant, Amr Shehata, was hired by the Defendant, Ashton College Ltd., as a Senior Educational Administrator on November 19, 2018, earning $55,000 per annum. Ashton College terminated the employment without cause on April 4, 2019. The employer paid Mr. Shehata one week of wages as severance, which I calculate at $1,057.69.

[2]           Mr. Shehata was previously employed by Ashton College as an instructor from November 19, 2018 to April 4, 2019. This employment was on a contract basis.

[3]           Vitoria Correia is the director of the Vancouver Campus of Ashton College. She first knew Mr. Shehata when he was an instructor. Ms. Correia says that in October 2018 she interviewed Mr. Shehata in relation to another teaching position. Given his management background, she asked him about the position of Senior Educational Administrator with the College. Ms. Correia explained the position to Mr. Shehata, which commenced with a probationary period. Mr. Shehata asked what happens during the probationary period. Ms. Correia said that if Mr. Shehata was not a good fit with the position, he would be terminated. Ms. Correia said Mr. Shehata then asked what happens after the probationary period ended, and she responded that “we would follow Employment Standards.”

[4]           Ms. Correia says they had a second interview toward the end of October 2018. Mr. Shehata only recalls one interview but nothing turns on this.

[5]           Mr. Shehata did not provide any specific details of his recollection of the meeting with Ms. Correia.

[6]           What followed next were a series of emails.

[7]           On October 30, 2018, Zainab Bukhari, the Human Resources coordinator for Ashton College, emailed Mr. Shehata with an offer of employment as a Senior Educational Administrator.

[8]           On November 1, 2018, Ms. Bukhari sent Mr. Shehata an Adobe document with a job offer for the Senior Educational Administrator position. Ms. Bukhari told Mr. Shebata that he could accept the offer of employment by signing the document electronically.

[9]           Mr. Shehata responded that same day to ask to have a few points clarified. Among his questions, he asked in his email: “What is the notice period for both termination or resignation?”

[10]        Ms. Bukhari responded by email stating:

[11]        Ms. Bukhari revised the offer of employment to set out Mr. Shehata’s correct legal name. All other terms were the same. The offer was sent to Mr. Shehata and he electronically signed it and returned it to Ms. Bukhari. In turn, both Ms. Correia and Ms. Bukhari signed the document on behalf of Ashton College.

[12]        The Offer of Employment makes no reference to the period of notice to be given upon termination. The letter does include the following statement:

[13]        The Offer of Employment also attached a Non-Competition Agreement, which only applied if the employee terminates employment or if the employer terminates employment for cause.

[14]        By way of an email dated November 2, 2018, Ms. Bukhari thanked Mr. Shehata for signing the offer of employment. The email also attached for Mr. Shehata a copy of the Employee Handbook, which Mr. Shehata confirms receiving.

[15]        Section 7 of the Employee Handbook states as follows:

[16]        This provision sets out the minimum notice requirements found at ss. 63(1) and (2) of the Employment Standards Act [RSBC 1996] c. 113.

[17]        Vitoria Correia made the decision to terminate Mr. Shehata’s employment. She and the school’s supervisor of student services met with Mr. Shehata on April 4, 2019. Ms. Correia presented Mr. Shehata with a letter of termination. The letter stated:

[18]        Ms. Correia recalled that Mr. Shehata asked why he was being paid for one week and not two weeks.

[19]        Mr. Shehata only recalls asking “why one week?”

[20]        At the time of termination on April 4, 2019, Mr. Shehata was employed for approximately 4 ½ months. He was 38 years old then.

[21]        Mr. Shehata said he sought legal advice then. He also said he had some family issues to deal with and so he delayed seeking new employment until April 23, 2019.

[22]        Mr. Shehata sent a number of emailed job applications following the termination. Details of his job search efforts were as follows:

[23]        Mr. Shehata said he went on a trip to Egypt for three weeks from May to June 20, 2019. He did not seek work during this time.

[24]        Mr. Shehata also did not apply for work in July 2019 because he thought most schools would be on holidays.

[25]        Mr. Shehata understood that the non-competition clause that was part of the Offer of Employment prevented him from applying to any schools in the Vancouver area. He is mistaken though as the wording of the clause only applied if Mr. Shehata resigned or the school terminated him for cause.

[26]        Mr. Shehata said he obtained employment at ILAC College in September 2019 as a part-time instructor. He said he was paid $50 an hour working four hours a day for two days a week. The job lasted nine weeks. By my calculation, he earned $3,600.

[27]        Mr. Shehata also testified that during the six months after the Ashton College job ended, he worked part-time in his immigration consultant business. Mr. Shehata was unable to say what he earned during this time though.

[28]        Mr. Shehata claims severance based on six months of wages, less the one week of severance paid. Mr. Shehata says that he has not waived the right to common law damages.

[29]        Ashton College says that Mr. Shehata did waive the right to claim common law damages and that Mr. Shehata was aware that any claim for compensation for dismissal was limited to that payable under the Employment Standards Act.

[30]        Ashton College submits that Mr. Shehata received a copy of the Employee Handbook prior to the start of his work and so he had an opportunity to read it and dispute any terms, such as the termination provision.

[31]        If Mr. Shehata is entitled to common law damages, Ashton College says that any award should be reduced by the income earned while teaching at ILAC College and in the immigration consultant business.

[32]        In addition, Ashton College says that Mr. Shehata failed to mitigate his losses. Ashton College argues that Mr. Shehata was applying for teaching positions when his limited education and work background as a teacher meant it was unreasonable to seek a teaching job.

[33]        I will address the following issues:

[34]        The terms of employment are those in place at the time that Mr. Shehata was hired.

[35]        Prior to the hiring in October 2018, Vitoria Correia told Mr. Shehata that if he was terminated after the probation period was over, Ashton College “would follow Employment Standards.”

[36]        Then in an email sent November 1, 2018 to Mr. Shehata, Ms. Bukhari said:

[37]        The Employee Handbook was not provided until after the offer of employment was accepted.

[38]        Ashton College submits that Mr. Shehata could have reviewed the Handbook and if there was any concern about the termination provision in the Employee Handbook, Mr. Shehata could have raised this issue then and make a decision not to continue with the employment. However, the terms of employment would then have applied to put into effect the non-competition clause. The contract of employment was already in place before Mr. Shehata was provided with the Employee Handbook and the terms set out in the Handbook did not form any part of the contract of employment.

[39]        The discussions about the Employment Standards Act prior to the formation of the employment contract did not refer to Mr. Shehata waiving his common law right of damages for termination of employment. Any waiver of such a right must be clearly discussed and agreed to if it is to bind Mr. Shehata: see Machtinger v HOJ Industries Ltd., 1992 Canlii 102 and Ly v. British Columbia (Interior Health Authority), 2017 BCSC 42 at paragraph 40.

[40]        I am satisfied that the contract of employment did not include a waiver of the common law right of damages.

[41]        In the decision Saalfeld v. Absolute Software Corporation, 2009 BCCA 18, the plaintiff was employed as a Federal Territory Manager for a period of nine months. The plaintiff conducted a reasonable job search and found employment after ten months. The trial judge set reasonable notice at nine months.

[42]        At paragraph 15, Madame Justice Huddart of the Court of Appeal stated:

[43]        The Court of Appeal went on to say that the trial judge’s decision was not unreasonable, noting that the trial judge emphasized the time it took for new employment to be found: see paragraph 16. The Court went on the conclude that the trial judge’s decision was at the high end of the range but was not unreasonable.

[44]        In Greenlees v Starline Windows Ltd., 2018 BCSC 1457, the 43 year old plaintiff was hired as a sales professional. He was terminated from his employment after six months. The parties agreed that taking into account factors of age, responsibility and length of service, notice of two to three months was appropriate: see paragraph 42. The plaintiff argued that other factors came into play that called for a longer notice period. The court agreed that there was some level of inducement and evidence of a limited availability of alternative employment: paragraph 67. The court set the notice period at six months.

[45]        In Ly v. British Columbia (Interior Health Authority), 2017 BCSC 42, the plaintiff was hired as Manager of Quality and Patient Safety and Client Experience. He was 38 years old and was terminated after two months. Mr. Ly found alternative employment within three months in another Province. Damages were set at three months.

[46]        In Burns v. Lyons, 2015 BCSC 605, the 33-year-old plaintiff was employed for two months as a restaurant manager. The court fixed reasonable notice at two months and in doing so, noted that the plaintiff was induced to leave her former position: see paragraph 60

[47]        In Avelin v. Aya Lasers Inc., 2018 BCSC 2313, the plaintiff was a 47-year-old salesperson who was employed for seven months. The court fixed reasonable notice at four months, noting that the plaintiff was older and was only able to find inadequate replacement work after four months and better alternative work after 7.5 months.

[48]        The decision Pavac Industries Inc. v. Marshall, 2018 BCSC 830, was an appeal of a Small Claims Court decision, where the claimant sued for wrongful dismissal after six weeks of employment. The Provincial Court judge awarded damages equivalent to eight weeks of employment. The Supreme Court held on appeal that although an award of eight weeks was unusual given that the period of employment was only six weeks, the decision was not a reversible error: see paragraph 22.

[49]        In the case before me, Mr. Shehata did not seek alternative management work in the education field. His job search efforts focused on teaching positions for which he had limited experience. During this time period, Mr. Shehata was also focused on developing his immigration consultant business. Unlike the situation in Saalfeld, Greenlees or Avelin, I cannot rely on Mr. Shehata’s inability to find alternative employment in the months after his employment ended as an indicator that he was facing a difficult job market to find equivalent employment. Mr. Shehata simply did not seek similar employment after his termination.

[50]        There was also no inducement as Mr. Shehata was unemployed when he was hired by Ashton College.

[51]        I see no basis to move beyond the two to three month range referred to in Saalfeld decision. Given the short duration of employment, I set reasonable notice at two months.

[52]        The claimant concedes that the one week of severance already received should be deducted from the damages award.

[53]        Mr. Shehata earned income working for ILAC College in September 2019. This is beyond the two month period of reasonable notice and so the income earned from this employment is not a proper deduction from the damages award.

[54]        Mr. Shehata admits to earning income from his immigration business but there is no evidence of the amount earned or when he earned that income. I will set an arbitrary amount of $1,000 as the amount to be deducted for income earned during the two months following termination from employment.

[55]        Ashton College submits that there should be a further deduction due to a failure to mitigate. The onus of proving any failure to take reasonable steps to mitigate the loss rests with Ashton College: see Carlysle-Smith v. Dennison Dodge Chrysler Ltd., 1997 CanLII 972 (BC SC) at paragraph 31. Ashton College has not provided any evidence in this regard. I have also already taken into account the job search efforts made by Mr. Shehata by not moving beyond the notice period referred to in Saalfeld.

[56]        The damages are calculated as follows:

[57]        I order that Ashton College Ltd. Pay to Amr Shehata the sum of $7,108.97 plus the court filing fee of $156 and service fee of $80.

[58]        A party may wish to make submissions regarding payment of expenses, fees or a penalty pursuant to the Small Claims Court Rules. If that is the case, then the applicant party must file written submissions with the Registry addressed to my attention within three (3) weeks after the date these Reasons for Judgement are released, with a copy of the filed submissions sent forthwith to the other party.

[59]        Within two (2) weeks after receiving the submissions, the responding party may file a reply with the Registry addressed to my attention, with a copy delivered to the other party. If a reply is not received within this time period, then I will assume that the responding party will not be making a reply. I will in due course issue a further written decision to the parties.