Canadian Employment Law Today

September 03, 2014

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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GSt #897176350 Published biweekly 22 times a year Subscription rate: $299 per year cuSToMeR SeRVIce Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: carswell.customerrelations Website: Thomson Reuters canada ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: karen lorimer Publisher: John hobel (on leave) Managing Editor/Acting Publisher: todd humber Editor: Jeffrey R. Smith E-mail: ©2014 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian How would you handle this case? Read the facts and see if the judge agrees You MAKE tHE CALL 8 Complaints, evaluations, notices and a fi ring ThiS inSTALMenT of You Make the Call features a First Nations band employee who contested her dismissal for poor perfor- mance. Lina Williams was hired in October 1999 by the Alexis Creek First Nation, a First Na- tions band in the British Columbia interior, to be the its drug and alcohol counsellor. In January 2006, she became the band's educa- tion co-ordinator. Williams started the new position with a three-month probationary period. On Nov. 21, 2006, Williams received a writ- ten notice for poor performance in a memo- randum from the band manager. e notice indicated the band had concerns "in regard your competency and skills in fulfi lling the tasks required of you" — such as failing to fol- low the band's and national policies in mak- ing her decisions. e band manager stressed the importance of following policies and Wil- liams responded that she was performing her duties "the way it's been done in the past" — a reference to Williams' close relationship with a band councillor who was her predecessor as education co-ordinator. e band was also concerned that Williams didn't contact parents of students to let them know of policies aff ecting their children and failed to actively participate in the band's edu- cation meetings. ere were no records to indicate any fol- low-up after the notice was given to Williams. In April 2008, Williams received a second notice for poor performance, this time from a new band manager who had been on the job for one month. e letter was the result of a request for a wage increase by Williams, af- ter which prompted the band council to list concerns about her performance. e wage increased was granted with conditions: Fol- low up on student request, weekly visits to the elementary school to keep track of what was going on, more communication and visits to the high schools, attend more student-relat- ed events, and spend time in the band offi ce within her department. e new band manager followed up with Williams every two weeks to check on her progress for some time, then shifted to a monthly basis. Williams made progress, but slowly. ere continued to be complaints about her performance for things such as de- nying funding requests or being late in pro- viding letters of reference, though the band manager felt many of these came from misun- derstandings that could be rectifi ed through better and more clear communication from Williams. By 2007, many of the band councillors felt Williams was prone to unprofessional con- duct such as not keeping up-to-date on re- ports, sitting in other peoples' offi ces and not maintaining regular contact with the band's schools. In September 2007, the council re- ceived a petition signed by seven students that expressed concern about Williams' attitude, which characterized her as "grumpy, hard to talk to or rude." However, the band chief felt this petition came from disgruntled students whose applications for living expenses grants for attending school away from home had been rejected. A new chief and some new councillors took offi ce in January 2010, and they imple- mented employee evaluations for the fi rst time in quite a while. In April 2011, all staff were asked to do a self-evaluation on 15 fac- tors and a panel also rated their performance. Williams was concerned because she was the former chief 's cousin and her connections with the old regime could put her on the outs. Williams received the worst rating from the panel — 11 "needs improvement," one "satisfactory" and three "meets expectations," with one not applicable — while her self-eval- uation was the highest of all the staff . Hers was the only self-rating that was signifi cantly dif- ferent from the panel. According to the panel, Williams' weak- nesses were communication skills, listen- ing skills, response to requests, personal opinions not kept confi dential, poor rela- tionships with students and co-workers, accountability, organizational skills, and stu- dent trust. After a few more letters from students over the next year-and-a-half, the band decided to terminate Williams' employment. On Dec. 13, 2011, it gave her a letter of dismissal that stated "this is the third and fi nal written notice for poor performance." You MaKe THe call Did the band have just cause for dismissal? OR Was Williams unjustly dismissed? iF You SAiD Williams was unjustly dis- missed, you're right. e adjudicator found there were concerns about Williams' perfor- mance from the outset and the staff evalua- tions were "fairly and objectively carried out." e discrepancy between her self-evaluation and the panel's unanimous evaluation led to the conclusion that Williams' "highly posi- tive self-evaluation was unrealistic and gave evidence of the (panel's) assessment that she 'does not take direction well.'" e adjudicator found the band estab- lished that Williams was not performing "the duties and responsibilities of her position to an acceptable standard, and had shown little or no willingness or ability to make up for the defi ciencies that were so often noted." However, the band did not proceed with appropriate discipline — the fi rst memoran- dum for poor performance had no penalty or warning and couldn't be considered a dis- ciplinary measure, said the adjudicator. e second notice contained a "mixed message" because it came with an approved wage in- crease with conditions that Williams could assume she met because the increase was never withdrawn. Finally, the 2011 evalu- ation did not come with any warning that if she didn't improve she would be fi red, said the adjudicator. e adjudicator determined the band was entitled to dismiss Williams but not for cause. e band was ordered to pay Williams eight months' salary in lieu of notice. See Williams and Alexis Creek First Nation, Re, 2013 Car- swellNat 1536 (Can. Labour Code Adj.).

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