Canadian Employment Law Today

6 | September 13, 2017 Canadian HR Reporter, a Thomson Reuters business 2017 Cases and Trends Sylvestre and Benjamin worked, and on the same day as one of the assaults and the death threat, the band chief was charged with as- saulting the band manager's husband and being intoxicated on the reserve. Sylvestre and Benjamin witnessed part of the March 31 incidents — Sylvestre saw the councillor come into the office and verbally threaten the other councillor who was even- tually assaulted. Benjamin saw the council- lor chasing the employee that was eventually assaulted. Both feared for the safety of them- selves and other employees in the band of- fice, so Benjamin called the RCMP and they left work. A few days later, the band chief submitted his resignation, leaving a leadership vacuum. Another councillor decided to hold a com- munity meeting, where it was decided to hold an election. Benjamin made posters notifying band members of the meeting. However, there was a group of councillors and band members who didn't want the chief to resign or an election, led by the council- lor charged with the assaults. ey felt the councillor who organized the meeting didn't have the authority to do so, so they told the chief his resignation wasn't accepted. e decision to reinstate the chief led to a dispute over band property and finances. e dispute led to tension and confusion in the band office between two opposing fac- tions — those who reinstated the chief and those pushing for an election. e councillor pushing for the election was given a termina- tion letter by the other faction, but refused to accept it. Office employees sent home during leadership dispute e pro-election councillor, at the direction of another councillor, made an announce- ment over the intercom on April 14 at the band office telling employees to go home until the dispute was sorted out. One coun- cillor told the employees, "don't worry, you'll still have your jobs." e pro-chief faction proceeded as if the pro-election councillor was terminated and resumed operations at the band office. ey took a few days to get things settled and some employees returned to work. However, some — including Sylvestre and Benjamin — weren't sure about returning. Sylvestre in particular had reported to the pro-election councillor and Benjamin, like many in the community, supported an elec- tion and was uneasy returning to work with the pro-chief faction in control. An office employee was instructed to call the employees who hadn't yet returned and tell them to come back or they would be con- sidered to have abandoned their jobs. Only one employee was successfully reached that day and she returned to work. ere was no answer at Sylvestre's home and a message was left with Benjamin's mother, but BRDN didn't follow up with employees' it had failed to contact on the first attempt. On April 28, two weeks after the employ- ees had been sent home, the chief and coun- cil had a meeting with Indian and Northern Affairs Canada. One councillor proposed the employees were who still off work be re- instated, but instead a resolution removing signing authority for financial matters for Sylvestre, the pro-election councillor and others. ere was also a discussion about dismissing Sylvestre, Benjamin, and the em- ployee assaulted by the pro-chief councillor. Dismissal for abandonment of position Sylvestre and Benjamin soon received ter- mination letters dated May 5, stating they had abandoned their positions based on an unauthorized order from "a gathering of rogue band members" and their em- ployment was terminated when they failed to return. ey both filed unjust dismissal complaints, arguing that it was reasonable to leave work as directed by the pro-election councillor given the "uncertainty and poi- soned atmosphere" in the office. In addition, they said they weren't warned they would be terminated if they didn't return to work. e adjudicator found there was no doubt the band office was closed temporarily be- cause of "the chaos and political turmoil" and this was a reasonable direction by the pro-election councillor, regardless of who had authority. e adjudicator also noted that all employees left, not just Sylvestre and Benjamin, and they had no choice. e adjudicator also found that though the office reopened, Sylvestre and Benjamin remained off work because they thought it was the right thing to do — the community had voted for an election, meaning the old council had been discharged and the pro- election councillor was running things until the election. In addition, the atmosphere at the band office was not favourable to them if they did return, said the adjudicator. "e degree of dysfunction in the work- place was significant as evidenced by the criminal charges against the chief and (the pro-chief councillor). ere is no doubt in my mind that the (pro-chief ) faction viewed Sylvestre and Benjamin as enemies, for want of a better term," the adjudicator said. "It would be unreasonable to expect that Syl- vestre and Benjamin would return without some assurance that the infighting was over or, at the very least, that the situation at the band office was stable." e adjudicator pointed out that there was no follow-up in writing to the two em- ployees indicating they should return to work, and no-one in the office actually spoke to either of them to say they were expected back. In addition, the April 28 meeting had a motion proposed to reinstate Sylvestre and Benjamin, indicating they were already ter- minated, said the adjudicator. "It is no stretch to conclude that (Sylvestre and Benjamin) were being punished because they questioned the authority of (the chief and his faction), not because they hadn't re- turned to work," the adjudicator said. e adjudicator concluded that Sylves- tre and Benjamin were unjustly dismissed. BRDN was ordered to pay Sylvestre $85,270 in damages — including compensation for past and future wage loss and $2,500 dam- ages for mental distress. She didn't want reinstatement. BRDN was also ordered to reinstate Benjamin to her position and pay her $68,800 in damages — including com- pensation for wage loss and $1,500 for men- tal distress. See Sylvestre and Buffalo River Dene First Nation, Re, 2017 CarswellNat 2500 (Can. Lab. Code Adj.). Workers not told jobs were in danger « from OFFICE on page 1 WEBINARS Interested in learning more about employment law issues directly from the experts? 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