Employee on the “wrong” side of political divisions in First Nations community was unjustly dismissed

In the matter of an Unjust Dismissal Complaint

Under Part III of the Canada Labour Code, R.S.C. 1985, c. L-2

 

BETWEEN

EILEEN P. JOSEPH

COMPLAINANT

AND

GITKSAN LOCAL SERVICES SOCIETY

RESPONDENT

 

ADJUDICATOR:                               Ib S. Petersen

FILE NO.:                                           YM2707 – 11207

HEARING DATE:                             October 9 – 12, 2018

WRITTEN SUBMISSIONS:             October 26, November 9 and 18, 2018

DECISION DATE:                             December 18, 2019

APPEARANCES:                              Ms.Eillen Joseph on her own behalf

Ms. Diane McRae on behalf of the                                                                                                     Gitksan Local Services Society

 

 

 

DECISION

 

This is an unjust dismissal complaint under the Canada Labour Code, R.S.C. 1985, c. L-2 (the “Code”).

 

Facts

1. Eillen Joseph was terminated from her employment with the Gitksan Local Services Society, a.k.a. the Gitksan Government Commission (“GGC”) on August 20, 2016. The termination letter stated that she was “laid off due to extenuating circumstances.”

 

2. The GGC is a society incorporated under the British Columbia Societies Act, S.B.C. 2015 c. 18. The GGC delivers programs and services to members of Bands of the Gitksan Nation, dealing with Department of Indigenous and Northern Affairs (“INAC”), funding, housing, and education.  When Joseph’s employment was terminated, four Bands were members of the GGC:  the Kispiox, Gitanmaax, Glen Vowell/Sick-E-Dakh, and Gitanyouw Bands.  Other Bands, including the Gitwangak and Gitsegukla, were not members.

 

3. The GGC had an administrative office in Hazelton, British Columbia. From 2012 Diane McRae was the Executive Director.

 

4. The Bands are creations of statute, established under the Indian Act, R.S.C. 1985, c. I-5. Every two years the bands members elect Band Councils to act as their elected governments.  Each Band elects a Chief Councillor and a number of Band Councillors. The Band Council and the administration offices are responsible for delivering programs and services to their individual Bands. Each of the Bands have separate administrative offices located within their communicates.

 

5. Traditionally, the Chief Councillors of the member bands have served as directors of the GGC. The Chiefs serving on the GGC Board in 2016 were Robert Barnes (Kispiox Chief Councillor), (until August) Marj McRae (Gitanmaax Chief Councillor), Robert Samson (Glen Vowell Chief Councillor), and Tony Morgan (Gitanyow Chief Councillor).  For convenience, I refer to the Chief Councillors as Chief McRae, Chief Barnes, Chief Samson and Chief Morgan.  In or about August 2016, (then) Deputy Chief Veronica Green replaced Chief McRae.  Chief Marj McRae was Executive Director Diane McRae’s sister.

 

6. Joseph started her employment with the GGC as a Lands Officer on June 8, 2005. Lands Officers are responsible for implementing land management under the Indian Act.   Lands Officers work with the Indian Act, Indian Land Registry System, Indian Estates Regulations, Mineral and Timber Regulations, Natural Resource Canada land surveys, and Environmental protection statutes and regulations.   She testified that it was a highly specialized position and that there are few positions available.  Heather Barnes, a GGC employee, agreed.  Joseph also worked on specific claims related to a contamination of Gitanmaax Band lands dating back to the 1960s.

 

7. Joseph worked as the Lands Officer until early 2010. On April 15, 2010, Joseph also took on the duties of the GGC’s Executive Director. As Executive Director she reported to GGC’s Board.  According to the organizational chart, all other positions, Finance, Membership, Social Development, Housing and Lands, reported to the Executive Director. Joseph worked in both positions for approximately 16 months until the end of September 2011.  In addition, in 2010 Joseph had started working on litigation undertaken by a number of parties, including six Gitksan Hereditary Chiefs, arising out of the treaty negotiations with the Governments of British Columbia and Canada.  She found juggling three “jobs” too much, and she asked to be relieved of the Executive Director position.

 

8. The defendants were the Gitksan Treaty Society (“GTS”), British Columbia Treaty Commission, the Province of British Columbia and Canada. The GTS is incorporated under the B.C. Societies Act for the purpose of negotiating a treaty with the Governments of Canada and British Columbia.  Ardythe Wilson explained that the GTS was created specifically to manage the positions of the Hereditary Chiefs and house groups in the treaty negotiations.  Within the Gitksan Nation there are a number of clans, Firewood, Frog, Wolf and Eagles.  Within the clans there are houses or house groups of related individuals, related through maternal lines.  Not all Gitksan people are members of house groups.  Hereditary Chiefs and subordinate Wing Chiefs exercise leadership of houses and house groups.

 

9. Not all Hereditary Chiefs were in favor of the positions taken by the GTS and challenged it. In their view, a governance model proposed by the GTS would negatively impact on the rights and obligations of the Hereditary Chiefs and houses, band members and band councils. In December 2008, certain Hereditary Chiefs, a number of bands and the GGC commenced action in the B.C. Supreme Court (the “Spookw Litigation” or the “Litigation”).  The Plaintiffs were six Hereditary Chiefs and included four Bands: Gitanmaax, Glen Vowell, Gitwangak, Kispiox and the GGC.  Gitwangak is not a member of the GGC.  Gitanyow was a member but did not participate in the Litigation.

 

10. A Litigation Committee comprised of the Chief Councillors from the Kispiox, Gitanmaax and Glen Vowell Bands, also directors of GGC, provided political and legal direction to the Litigation. The six hereditary Gitksan Chiefs or their representatives also participated in committee meetings.  Chief Barnes testified that decisions of the Litigation Committee were brought to the Board of GGC where Directors had a vote, especially if the decision required the expenditure of the litigation funds.  Gitanyow Chief Morgan, did not participate because the Band was not a party to the Spookw

 

11. In the action the plaintiffs sought, among others, to wind-up the GTS because it, in their view, did not represent the interests of the Gitksan people. Over the next years, the action spawned a number of decisions.  In Spookw v. Gitxsan Treaty Society, 2014 BCSC 1100, the Court dismissed the plaintiffs’ claims.  The plaintiffs appealed the decision.  An appeal was initially scheduled to be heard by the B.C. Court of Appeal in mid-December 2015.  It was delayed until September 2016 due to the illness of a senior member of the plaintiffs’ legal team.  In January 2017, the B.C. Court of Appeal dismissed the appeal (Spookw v. Gitxsan Treaty Society, 2017 BCCA 16).   Two of Joseph’s sisters, Cindy and Bertha Joseph, were co-counsel with M.L. Macaulay for the plaintiffs in the Spookw

 

12. At least from 2014 and on, some members of the Gitskan Nation raised concerns about the merits, lack of success, the costs of the Litigation, and the sharing of those costs among the participating bands. Other members of the Nation supported the Litigation.  Ardythe Wilson explained that the costs of the Litigation was initially estimated at $50,000 but had ballooned to $1.8 million.  The voices opposing the Spookw Litigation became increasingly vocal and the conflict spilled over into the GGC.

 

13. There was much testimony and documentary evidence related to on the merits the Litigation and the correctness, legitimacy or righteousness of various actors involved in the conflict. Those issues are not for me to decide. Moreover, while I generally find all the witnesses forthright and sincere, their testimony was invariably tainted by their views on the conflict (see also Faryna v. Chorny, [1951] B.C.J. No. 152 BCCA).

 

14. Joseph worked with the Litigation Committee from 2010 through August 2016. The Litigation Committee assigned tasks to Joseph and she reported to it.  The work she did was not included on the organizational chart.  Until she stepped down as Executive Director in September 2011, her roles overlapped, and she could report on the Litigation to the GGC board.  Overall, Joseph supported the Spookw Litigation and was identified as such by other GGC staff.  She enjoyed the work and took pride in it.  She was also close to the GGC Directors, in particular Chiefs Marj McRae and Barnes, who supported the Litigation, and had their support.  In addition, with respect to the Gitanmaax land claims, Eileen Joseph was instructed by Gitanmaax Chief Marj McRae and the Lands Committee, composed of the Chief and Band Councilors.  Joseph’s contributions in specific claims negotiations and settlement negotiations relating to the contamination of Gitanmaax Band lands, generally go beyond the responsibilities of Lands Officers, were viewed favorably by Chief Marj McRae and Richard Wright who took part in the negotiations on the files. When McRae became Executive Director, Joseph’s work for the Litigation Committee did become an issue because it crossed formal lines of authority.

 

15. On July 3, 2012 McRae became the new Executive Director. When she was hired, her sister, Chief Marj McRae, was not on the GGC Board.   McRae had a long history in finance and administration in First Nations organizations, provincial government and commissions.  McRae worked for the GGC for some five years from 1987.  In 2001 she returned to the GGS as a finance manager and served as acting executive director for a brief period.

 

16. In 2008, with the commencement of the Spookw Litigation, McRae sought to have the litigation kept at arms’ length from the GGC because, from her perspective, it was not GGC’s fight. It was outside its mandate of service and program delivery.  The Litigation was kept behind “closed doors” without incident for a number of years.  From 2014, when the plaintiffs lost in the Supreme Court of B.C., and the Nation divided on the issue, McRae became more vocal about GGC’s role in the Spookw  Mcrae did not attend meetings of the Litigation Committee.  McRae never witnessed the discussions, decision making or delegation of work to Joseph by the Board members.  McRae was supportive of those who wanted to bring the Spookw Litigation to an end and was seen as such.  Much of the senior staff, Dennis Sterritt (Housing Manager), Elisabeth Harris (Finance Clerk) and Sandra Harris (Social Development), at the GGC followed her lead.

 

17. As of September 19, 2011, when Joseph returned to her Lands Officer position on a three day work week, work on the litigation file and remain a full-time (four days a week) employee until to the conclusion of the Spookw In reality, Joseph’s litigation work likely exceeded one day per week.  Joseph testified that the litigation work was extensive, sometimes five days a week, generating cumulative annual leave and overtime.  Joseph did report her overtime to McRae, including by email.  From McRae’s perspective the litigation work consumed “all of [Joseph’s] time since 2014.”  Joseph was spending too much time on something McRae did not believe she ought to spend time on.  The GGC Board saw it differently.

 

18. As Lands Officer she reported to McRae, responsible for supervision of staff, who was ultimately (formally) responsible for approval of overtime and leave entitlements. With respect to Litigation Committee work, Joseph was assigned tasks and reported to its members.  McRae agreed that Joseph did work that she had been directed to do by Members of the Committee.  Joseph was spending a lot of time with Chief Marj McRae.  Joseph took part in meetings with overtime signed off by members of the Litigation Committee.  In McRae’s view, the Litigation Committee had become Joseph’s “new boss,” diminishing the role of the Executive Director.  McRae testified that she told Joseph that the Litigation Committee was not her “boss,” and told her not to take directions from Chiefs Barnes and Marj McRae.  All the same, Joseph continued to work on the Litigation as directed by the Board.  McRae found this frustrating.  The Board being the Board, short of McRae putting her job on the line, there was little she could do about it.

 

19. In 2015, Joseph told McRae that she no longer wanted to be involved with the Spookw Litigation.  In the late summer of 2015, the Board decided to create a position as Board Liaison, working directly with the GGC board with respect to political and legal issues, something McRae did not want to do, and which the Board had accepted.  Ostensibly, the intent was that the Board Liaison take over Joseph’s work with the Litigation Committee. The Board Liaison was to be “accountable to the Board of Directors/Executive Director.”  As well, the Board Liaison was to work collaboratively with the Executive Director to “avoid duplication of efforts and confusion over roles and responsibilities.”  However, that did not happen.  Joseph declined to take on the new position, and Sandra Olson was the successful applicant and hired for the position.

 

20. Olson attended the Board meeting in December 2015 with McRae. In January 2016 Olson started to chair Board meetings, prepare minutes and emails. In an about-face, the Board decided that Joseph would continue to work on the Spookw Litigation file as recommended by the legal team on the litigation file.  Joseph continued working with the Litigation Committee.  The relationship between McRae and the GGC Board deteriorated.

 

21. McRae expressed her frustrations about the Litigation Committee providing directions to Joseph and the hiring of Olson. The following email exchange on January 13, 2016 between Chief Marj McRae and McRae is instructive:

 

Good morning:

I was just in talking to Eileen about the Litigation file – she informs me that she has been told not to transfer these files over to Sandra Olson and that she is to stay on this file until the appeal is over? Foremost, because Eileen indicated to you and myself twice (after the fact) that she no longer wanted to deal with this file, was not interested in taking on the duties as Board Liaison even when it meant a decrease in her hours, Sandra was hired. It was reiterated to Sandra throughout the interview that top priority was that she would be taking over the Litigation file, I went in to see Eileen to ask why this is not taking place when she informed me of the above. Who coordinates this file from GGC end should not be up to the lawyers or the Litigation committee – they are not paying for this service. As we know litigation can go on for years and years and years – people come and go – lawyers even change. If this is the case, I am at a loss as to why we hired Sandra – we are paying two people for the same services. Please advise.

Diane McRae, CAFM Executive Director

 

Good morning

Just to refresh everyone’s memory when we were in Prince George for our GGC planning session. A letter from our lawyers was presented to me stating that they wanted Eileen to remain with the legal file. They gave a rationale on why they were recommending status quo with Eileen. At the GGC board meeting motion pasted to support the lawyers request and we wanted Diane McRae to draft letter to Eileen as Diane is the executive director. Hope this clarifies this situation.

Chief Marjorie McRae

 

22. On January 26, 2016, McRae sent an email to Chief Marj McRae and other members of the GGC Board, in part:

 

I’ve just finished talking to Eileen again as I seen that she was present in this building at 7:30 last night and I had not pre-approved any overtime for her. I understand that she took her direction from Bob to be in attendance last night, she also attended a meeting a couple of Sundays ago which I was at least made aware of, my point is – if board I members are going to be directing Eileen and assigning tasks over and above her duties as the Land’s officer there is no need for me to be supervising her. It is only Eileen board members who are on the Litigation Committee have been giving direction to, she has been a personal secretary to the Committee who are approving things for her that I am not even aware of so in an effort to eliminate the frustration that Eileen and I are both feeling, I suggest that a letter go to Eileen indicating that she is no longer accountable to me as the Executive Director then I don’t need to know and will not be responsible for her activity. Also discussed with Eileen this morning is the fact that the land’s budget has been over expended by $55,712.00 over the last four years, the work she is doing with the Litigation committee is irrelevant to her job as the Land’s officer for GGC so her hours will be reduced to a three day week effective February 8, 2016, although I do feel the land files could be managed within two days per week. She can work on whatever needs to be done during those 3 days and any additional time will be paid as contracted services out of the Litigation budget. A letter clarifying and confirming our discussion this morning will be going to Eileen as soon as I can possibly get it written up and I would like to include that she no longer has to report to me as the Executive Director, please advise who it is she will be accountable to.

Regards, Diane McRae, CAFM

 

23. On February 1, 2016, McRae gave Joseph notice to reduce her hours of work to three days per week. Ostensibly, the alleged reasons for the reduction were the deficit position of the budget for the Lands Department for four years, there was little work on the Gitanmaax land claims file, and Joseph had had too many absences from work for personal reasons.  It is more likely that McRae was motivated, at least in part, by her view that the Litigation, and Joseph’s work, despite the Board’s decisions, was not part of GGC’s proper mandate, as she saw it.

 

24. McRae accused Joseph of insubordination. On February 1, 2016, McRae wrote:

 

I feel you have been insubordinate in your activities with the Litigation team, on at least three occasions I reminded you that the lawyers/litigation team are not your supervisors and should not be directing your work, apparently I am wrong given you remain on this file, even against your own wishes. Your dealings have been directly with Marj McRae and Bob Barnes, reporting to me as the Executive Director has been non-existent other than applying for time off … you can continue to report to Litigation team members as you have done for the past couple of years, I am not responsible for your actions other than in the lands department. …

 

25. While she reiterated her concerns about the Lands Department budget, the workload, and Joseph’s alleged attendance issues, in my view, McRae’s real issue was with Joseph doing the work she had been directed to do by the Board. Joseph took issue with McRae’s assertions with Chief McRae.    There was no grievance process to follow employees wanted to address inconsistencies or contradictory decisions by supervisors or managers.

 

26. On February 8, 2016, McRae unilaterally reduced Joseph’s work week to three days, as she had threatened to do. McRae decided unilaterally that additional hours would be paid as (non-employee) “contracted services.”  Elisabeth Harris, the Finance Clerk, agreed in cross examination that a “contract” would normally be in writing.  In Joseph’s case there was no written contract.  McRae’s decision was directly contrary to the spirit and the letter of the Board’s September 2015 decision with respect to Joseph’s full-time employment.   Not surprisingly, Olson and the Board overruled McRae.  At the February 11 meeting, the GGC Board discussed the cutbacks to Joseph’s hours of work.  Joseph attend the Board meeting at Olson’s request.  The Board confirmed Joseph’s full-time status.  The board also decided to place Joseph under Olsen’s supervision.

 

27. McRae continued to resist the Board. On February 15, 2016 McRae emailed Olson stating that, while Joseph was under Olson’s supervision, the Lands Program was a GGC service, and she needed to know when Joseph would be in the office.  Apparently, this was triggered by Joseph’s absence in the morning of February 15.  McRae also took issue with Joseph’s accrued overtime and leave entitlements.  Joseph had reported her overtime to McRae.  Joseph sought assistance from Olson who reviewed the documentation.  Based on her review, including those of Elisabeth Harris, the Finance Clerk, she found that there was a real discrepancy between McRae’s records and those of Elisabeth Harris.  Olson accepted Joseph’s explanations with respect to her leave entitlements.

 

28. Joseph did not see McRae until February 18, 2018. She felt that McRae was angry with her.  Joseph testified that McRae called her to her office, for a “sit down,” chastised her for attending the Board meeting on February 11 and going over her head to the Board.  Joseph explained that she had been asked by the Board to attend the meeting.  McRae accused Joseph of gross insubordination.  However, as McRae was no longer her supervisor, Joseph told her to “talk to Olson.”  McRae claimed that a month or two before this incident she had had a conversation with Joseph to the effect that her conduct had been “continuing in subordination for two years.”   There was little documentary evidence to support that assertion.   However, over time the relationship between Joseph and McRae had deteriorated.  Both were strong willed and resourceful women.  It is likely that there was a dose of personal animosity in McRae’s conduct towards Joseph.

 

29. On February 18, 2016, McRae issued a disciplinary letter to Joseph with a final warning. She stated, in part:

 

My goal was to find out what your thoughts were on the Motion made by the Board to have you reporting to Sandra Olson effective immediately and to hear your feedback on the fact that you attended a board meeting without my knowledge to discuss your hours of work thereby going “over” my head which is insubordination. When I asked you in what world this was not Insubordination you got up and stated you were going to get Sandra, I asked you to please sit down I wasn’t finished talking to you yet – you then wagged your finger at me stating that you were told you reported to Sandra now. …

… You have been cited several times verbally and three times in writing via email about your insubordination towards me, …. This letter serves as your final warning that any further occurrences may result in dismissal.

 

30. Joseph complained to Olson, who intervened on her behalf.

 

31. McRae accused Joseph of gross insubordination. On February 19, 2016, McRae wrote to the Board with respect to Joseph, in part:

 

Motion regarding Eillen Joseph – it would have been nice had I been provided the courtesy of speaking to my decision regarding her hours of work. This situation has been manipulated for three years now, by whom I’m not exactly sure but my role as the Executive Director within the Gitksan Government Commission has been undermined and disrespected, particularly in the last two years. …

As per your Motion, Eillen will be paid one day per week out of the Litigation budget as a contracted service thereby not increasing the GGC employer costs and taxing the Land’s budget any further. This Motion also indicates that the Board Liaison will report to you as the GGC board, does this mean that Sandra Olson no longer accounts to me as the Executive Director as well? Is the Board establishing a second administrative body within GGC?

The credibility of the Gitksan Government Commission has gravely decreased over the past couple of years, not only locally but we are not as highly respected as we once were out in the business world. If the above mentioned is the direction you as the governing body of the Gitksan Government Commission are moving perhaps it is time that a severance offer be made and I can move on.

 

32. McRae continued to defy the Board’s directives and she attacked the Board’s credibility, making thinly veiled references to constructive dismissal.

 

33. On March 1, 2016, Joseph wrote a lengthy detailed response to the Board, demanding that the letter for gross insubordination be expunged from her file. She took issue with McRae’s allegations.  The tone and tenor of the letter was combative.  In her letter she wrote among others about McRae and the Litigation:

 

…. My involvement with the file is to provide support to the legal effort and political strategy. …. A decision was therefore made to appoint an individual at GGC to undertake work to minimize costs. I have agreed to provide the support to the legal file and associated political action. During the years of taking on this responsibility I have endured significant stress most often brought on by Executive Director who disagrees with the action and refuses to have anything to do with it or understand it On a number of occasions, and to no avail, I have attempted to explain the strategy. I however continue to believe in and support the action, despite enduring personal distress for agreeing to work on the action and strategy. [Emphasis in original]

 

34. In March 2016 Olson presented a new organizational chart, which had been approved by the GGC Board, to GGC’s staff. McRae testified that the chart had been prepared without the knowledge and input of senior staff.   The chart showed the Board Liaison reporting to the Board and Joseph reporting her.   On the chart the Board Liaison was shown to be at the same level as the Board and above the Executive Director, who also reported to the Board (but not to Olson). Olson testified that because she had been hired to deal with political issues, and litigation involved politics, that it made sense to place Joseph under her supervision.

 

35. At the time, the GGC was undergoing an INAC review of its multiyear funding, “rolling over” annually for a 5-year period. In January 2016, INAC had requested a full review in order to qualify for multiyear funding.  An email April 13, 2016 from a Funding Services Officer at INAC to McRae, suggesting a higher risk assessment and potentially impacting funding agreements, triggered serious concern with the Board.  The Board began efforts to obtain information, emails or documentation as to why INAC would be sending such an email.  Olson was concerned that McRae was keeping funding related communications with INAC to herself, and that she was communicating with INAC that the GGC was in trouble.  Olson asked McRae for the email communications.  However, the Board did not receive those from McRae.  Wilson testified that the key to “roll over” funding was the stability of senior staff.  Without senior staff, such as McRae, Wilson testified: “we could forget about multiyear dollars.”  In my view, it is likely that McRae used her communications with INAC as a lever against the GGC Board.    In June 2016, the Band Councils were very concerned that the “lock out” of McRae and others would threaten multiyear funding.

 

36. On April 7, 2016 the GGC Board confirmed Olsen as Joseph’s supervisor, her full-time employee status, and that the disciplinary letter gross insubordination would be expunged from her personnel file. The decisions were made by three members of the Board, Chief Barnes, Chief Marj McRae and Chief Robert Samson. (However, on June 22, 2016, one of the signatories, Chief Sampson, rescinded his signature, claiming to have been bullied by Chiefs Barnes and McRae.  Chief Barnes in his testimony was adamant that no leaders were bullied.  In any event, there was no direct evidence that he or anyone else bullied Chief Sampson.  From McRae’s perspective, the decisions with respect to Joseph were now made without a quorum and, therefore, illegitimate.)   McRae denied she was angry with the Board’s decisions.  In the circumstances, given the history, I am not convinced.

 

37. McRae continued to resist the Board’s directions. In my view, it is likely that she (and possibly other senior staff) refused to implement Board decisions she (and they) did not agree with.  On at least five occasions between February 8 and the end of June 2016, Joseph’s pay cheques included only six regular days with pay and benefits, and a cheque for two days without benefit.  In other words, she was paid three days a week as an employee, and one day a week as a “contractor,” i.e. without benefits.   On May 15, 2016, Olson confirmed in writing to Joseph:

 

After much discussion and thought with the events that have occurred over the last few months the board has signed a letter that reverse decisions that have affected your payroll and your personnel file.

The first item addressed was payroll – the board has been made aware you are being paid 3 days per week as regular employee and 3 day per week under contract since the beginning of February 2016.

In the context of the province of British Columbia employment law. the board believes an employer employee relationship exists therefore we will request that payments made in contract form be reversed and you be paid as a regular employee with all rights and benefits.

The second item addressed is the February 18 2016 – gross insubordination letter put into your personnel file – the board has agreed this letter will be expunged from your personnel file.

All of the above is effective immediately.

 

38. While Olson attempted to restore Joseph’s pay and full-time employee status, this did not happen until after Elisabeth Harris, the Finance Clerk, went on sick (“stress”) leave at the end of June 2016. Ultimately, Joseph’s pay was restored.  The conduct of McRae in treating Joseph as a contractor for part of her work resulted in a loss of employer contributions to her retirement plan.

 

39. At the April 7, 2016 meeting, the Board reaffirmed the reporting relationships within GGC, revising the chart that had been presented by Olson to staff in March. A new organizational chart showed both McRae and Olson reporting to the Board.  Olson (still showing Joseph reporting to her) was at the same level as McRae.  The rest of the staff reported to McRae.  McRae characterized this as the creation of “separate political and legal arm to the GGC.”  At one point, the Board had also provided Olson with signing authority.  McRae felt she was being pushed out by the Board.  At the Board meeting, McRae opposed the Board, as reflected in the minutes:

 

ED spoke to the approved organizational chart and stated it appears the board is creating a separate political and legal arm to the GGC organization. There were also thoughts that the Board Liaison was shown to have been put in a higher position than the ED. Board Liaison handed out a revised organizational chart that shows the ED and Board Liaison at an equal level. The Board Liaison position was needed to accommodate the ED’s request to be completely removed from the political and legal aspects GGC. The ED gave her rationale for why she thought the Lands officer and Board Liaison should move – the political and legal arm of GGC is causing a toxic environment in the office. Also informed board of two staff members submitting letters about the office environment.

 

40. McRae aired a proposal to have Olson and Joseph being moved out of GGC’s offices to another building. McRae testified that she felt that it was best to move Olson and Joseph out of the GGS offices because of their “actions.”  In my view, on the evidence, there was no business rationale for this move.  Both Joseph and Olson considered the move impractical and unsafe.  Joseph explained that she did not feel safe there because of a “mentally unstable person” who had frequently come to the Lands Department.  The move did not take place.  After the Board’s acceptance of the new organizational chart, McRae “disinvited” Joseph and Olson from staff meetings.    McRae felt she did not be aware of those two “positions,” i.e. Olson’s and Joseph’s, and “they did not need to know about us.”  Olson testified that McRae told her that she and Joseph were not allowed to attend.  In my view, it is likely that McRae and, possibly, other staff, were attempting to ostracize and isolate Olson and Joseph.  In my view, the other senior staff members, Sterritt, Elisabeth Harris and Sandra Harris, were following McRae’s lead.

 

41. On April 14, 2016, the Board wrote to McRae, in part:

 

We understand our role and we also understand we have to make decisions that may not be agreeable to all, including our staff, but we expect our directives to be carried out.

The letter dated February 19 2016 speaks of our decisions and the last paragraph states it isn’t about you being for or against any of the decisions but more so in trying to maintain the financial integrity and credibility of not only the GGC but also yourself as the ED. Diane we feel as though our decisions are being completely disregarded and questioned as though we have not given careful thought to the decisions. As the governing body we are poised to make decisions and we expect than to be carried out. …

Diane we have not created a separate political and legal arm for GGC – it so happens because we have accommodated your requests to be completely removed from politics and legal issues we have had to hire a board liaison to take on the political and legal duties of the Executive Director position. At your request as well, we have removed the Lands Officer from your supervision and placed her under the Board Liaison. As you can imagine it came as a quite a surprise to us to hear that you made a decision to exclude both the Board Liaison and Lands Officer from the staff meetings. We expect our staff to work as team regardless of their job titles and we expect inclusion of the Board Liaison and lands Officer in all future staff meetings.

We also have heard and now read it twice (second one within the March 17 2016 email) and we quote “perhaps it is time that a severance offer be made and I can move on^”. It is unfortunate mat you have come to this as it is not our wish to have you leave GGC. In fact we have been very accommodating when it came to your requests. At this time we will not be entertaining offering anyone a severance.

 

42. McRae raised “staff concerns” with the board, claiming that there was a “toxic work environment.” According to McRae, Chief Barnes did not agree and claimed that it was “in her head.”  From McRae’s perspective, the Board’s approach left staff bewildered.  Three senior staff members stated that if McRae left GGC, they would leave as well.  McRae reiterated her own and senior staff concerns with the Board, including in letter dated April 27, 2016, but, in her view, they remained largely unanswered.  In the letter she wrote, in part:

 

… there is no communication at all to the staff on the direction of this case, we have been treated like we are all security leaks, everything is done behind closed doors and we are not allowed to even know what is going on.  …  The environment of lateral violence, mistrust and undermining that has been created and which we have become a part of is weighing heavy on us as staff.

 

43. At a staff meeting on April 14, 2016 there were discussions about Olson and Joseph, including the Board’s treatment of McRae, Joseph’s alleged insubordinate and disrespectful conduct, Olson assigning work to staff under McRae’s supervision, the perceived “secrecy” of the Litigation Committee’s work, perceived conflicts of interest, family connections on one or the other side of Spookw, and the merits of the litigation.  Sandra Harris, Social Development Coordinator, testified that the litigation split the community, it became an “us versus them.”  Elisabeth Harris, Finance Clerk, testified that the Litigation Committee appeared as a separate arm of the organization, meeting behind closed doors.  From her perspective, the Spookw Litigation had a significant impact on the work environment.

 

44. McRae testified that she felt that the Board ignored or dismissed her concerns, and that the Board Liaison office had encroached on her position. Her views ignored the fact that she, for some time, had been defying and resisting the Board.   In my view, it appeared that McRae was trying to take control of the GGC, garnering support among staff and outside supporters and allies, or leave with a severance package.   In McRae’s view, the Board had changed the organization, i.e. changed its mandate, without the knowledge and input of the community.  However, what in fact had changed, was the support for the Spookw Litigation among a number of individuals in the community.  The Board could claim to represent the members of the society.  McRae brought up constructive dismissal and that she would be consulting legal counsel in one of her letters to the Board.  The Board stated that it was not prepared to pay her out, i.e. pay severance.

 

45. Chief Marj McRae claimed that her sister, the Executive Director, Diane McRae, was trying to bring the society down. Apparently, a “fact sheet” was distributed door-to-door, which contained personal information about the Executive Director.   On the evidence, both sides of the Spookw conflict resorted to leaking, negative commentary and vilification in various fora, including social media.

 

46. On May 5, 2016, Sterritt, the Housing Manager, and McRae accepted nominations to run for the Gitanmaax Band Council. The GGC’s Personnel Policy permits 90 days leave for staff members running for band office.  On June 6, the Board placed Sterritt and McRae on leave for running for public office.  Sterritt testified that he did not get the letter and remained at work, unchallenged by anyone.  On May 11, 2016, McRae went to her doctor due to chest pain.  The doctor ordered her off work for four weeks.  McRae went on medical leave.   McRae was off on medical leave on June 6, 2016.  In any event, McRae’s was of the view that her letter was not signed by a quorum of the Board of the GGC, and therefore not legitimate.

 

47. In June things were coming to a head. A focal point in the June 2016 Band Council elections was the Spookw  Chiefs Marj McRae and Barnes supported the litigation.  Wanda Good, the Deputy Chief Councillor of the Gitanmaax band, explained that the Spookw litigation resulted in a split of the Board.  The Gitanyow was not involved in the litigation.  Wilson testified that, in her view, the Litigation did not have support among the Band members.

 

48. The Litigation impacted on the Board, including the apparent inability of a sufficient number of GGC Board members to attend board meetings. Olson agreed in cross examination that from December 2016 only Chiefs Barnes and McRae remained actively engaged in the Board’s business.  Only occasionally, did Chief Sampson attend Board meetings.  Between March 20 and Jun 27, 2016, there were numerous attempts to secure a meeting with a quorum of the board.  Deputy Chief Wanda Good testified that the quorum of the GGC Board was three.  With only two members generally attending, questions were raised of the legitimacy of the Board’s decisions – particularly from the standpoint of those seeking to change the status quo. From their perspective, Chiefs McRae and Barnes did not have the authority as they did.  Chiefs McRae and Barnes were perceived as running their own show.  Olson was asked if the Board wrote to the Band Councils for other representatives to be appointed.  She responded, “not to my knowledge.”   Chief McRae and Chief Barnes made numerous attempts to get the two non-participating Directors to attend meetings.  Clearly, GGC suffered from significant governance issues.  Nevertheless, from Olson’s perspective, what went wrong with the GGC in 2016, she responded that it was the Executive Director’s failure to follow the directions of the Board.

 

49. Both McRae and Sterritt were elected to Gitanmaax council on June 13, 2016. On June 15, 2016, when she returned to work from her medical leave, McRae terminated Olson as Board Liaison:

 

As you are aware the Board Liaison position is not working within the Gitksan Government Commission administration and given that the probationary evaluation has not been carried out this will serve as notice that this position is terminated effective immediately.

 

50. The letter is striking in that it expresses the view that Olson was not part of the GGC. There is no evidence that McRae had the unilateral authority to terminate Olson.  Olson did not report to her.  McRae testified that Olson told her no uncertain terms, as was in fact the case, that “I don’t report to you.”  At McRae’s instigation, her email account had been closed by Elisabeth Harris, the Finance Clerk.  However, the Board did not accept the termination and Olson continued to come to work.   On June 17, 2016, McRae wrote to the board expressing her concerns about the possibility of losing the entire staff because of the Board’s approach.  When this did not appear to work, McRae told the Board and the staff that she would take her annual leave until July 7, 2016.

 

51. Over the next couple of weeks, McRae sought to elicit outside support for her position. On June 17, 2016, McRae sent letters to the GGC Board and the Band Councils of all four member Bands, which was sent out to some 30 recipients, seeking their intervention against the Board.  This letter stated: “… my authority as Executive Director has been diminished to the point of outright disrespect from the Lands Officer and Board Liaison.”   In cross examination, McRae agreed that such communications were not common practice.  In her view there were extenuating circumstances, namely an effort to resolve the issues and get a resolution.  On June 22, 2016 Chief Barnes wrote to all Band Councils and GGC Employees and apologized for the McRae’s communications.  Chief Barnes stated that GGC personnel matters were to be handled in confidence.

 

52. After the election, members of the four newly elected Band Councils sought to take control of the Band Councils and the GGC. Others, for example, Chief McRae and her allies opposed the actions of the newly elected Gitanmaax Councillors.

 

53. Elisabeth Harris went on “stress” leave on June 20, 2016.  She explained in her testimony that she been directed by Cindy Joseph, a sister of Joseph and a member of Joseph Law (Firm), to “overturn” a decision made by McRae, the termination of Olson.

 

54. On the evidence, it is unclear precisely what triggered the incident on June 23, 2016. On the morning of June 23, Olson came to the office around 9:00 am with the GGC’s bookkeeper.  Joseph was on leave that day.  The bookkeeper was there to assist with the payroll, due on June 25, as both Elizabeth Harris and McRae were on leave.  Olson had no access to the computers as they were “locked down,” apparently by Elisabeth Harris before she went on stress leave.  Olson did not have the password.  Olson testified that she went into the finance office to review the previous payroll.  While they were in the finance office, Sterritt tried to open the door, which was locked.  Sterritt went through an internal glass sliding door, told Olson that she was trespassing, and had no right to be in the finance office.  According to Olson, Sterritt’s body language was aggressive and told he them in a loud voice that “you’re trespassing.”  Olson testified that Sterritt grabbed her arm and she told him not to touch her.  She also told him that he should not be there because he was suspended.  On the other hand, Sterritt testified that it was Olson who became hostile and aggressive, telling him “don’t touch me.”  Sterritt denied touching her.  In cross examination, Sterritt continued to deny any threatening behavior towards Olson.  He stated that Olson attempted to bring criminal charges, which were denied.  Olson testified that Sterritt forced them out of the finance office.  Olson and the bookkeeper went back to Olson’s office.  Ultimately the RCMP was called.

 

55. Olson telephoned Chiefs Marj McRae and Barnes, who apparently attempted to contact the other chiefs, and called GGC’s lawyer, Cindy Joseph, as well. Chief Morgan refused to attend or respond to emails.  Chief Sampson did not attend either.  A locksmith had apparently been called to the office to change the locks.  Following discussions between the RCMP and Cindy Joseph, Chief Marj McRae and Chief Barnes, the Board took control of the GGC office.  Sandra Harris and Sterritt left the office.  Ultimately, the locks were changed, and Olson received the keys.

 

56. McRae, who was not present, testified that she received a telephone call on June 23 to the effect that Chief Barnes, Chief Marj McRae and Cindy Joseph had told all the staff to leave, except Olson and Joseph. McRae and other senior staff saw themselves as having been “locked out.”  In an email dated June 24, 2016, McRae wrote to Council members of the four Bands and INAC concerning the June 23, 2016 incident.  McRae stated:  “I am aware that Sandra Olson and Eileen Joseph have been in contact with people to replace Elizabeth and myself.”   Joseph had also not been present on June 23.  Chief McRae emailed her and requested her assistance:  “Will need you to help out until things settle down at the office”.  Staff remaining in office were assigned tasks to assist in program delivery and service and temporary help was brought in to answer phones, ensure pay roll and funds were transferred to the bands as required.

 

57. On June 26, 2016, Chief Barnes issued a disciplinary letter to McRae for gross insubordination:

 

As you know, recent events to which you have significantly involved yourself have caused a significant disruption to GGC and its ability to function effectively. While you may have personal views as to how GGC matters should be operated; the Board is the authority and has the legal responsibility to direct the organization and work with staff and other stakeholders to ensure that GGC continues to operate.

1. On or about April 13, 2016, you communicated confidential information and aired your views on internal GGC business to a third party, namely Barbara Milczarski at AANDC. … Be advised GGC has sought disclosure of your communication to and from Ms. Milczarksi from the AANDC Regional Director General’s office on June 24, 2016 since you declined to provide such on two occasions.
2. More recently, you have engaged in a public campaign designed to injure GGC. Your conduct includes the dissemination of confidential GGC information and your personal opinionsabout   GGC   managements   and  internal   issues   to   third   parties. …
3. We also understand that you are carrying on business as the Executive Director of GGC. As you are on leave, which we have fully accommodated, it is not appropriate for you to be carrying on business purportedly on behalf of GGC particularly when that business is really you taking steps purportedly on GGC’s behalf but with a view to binding GGC to things that in your personal view GGC should be doing; …
4. Directing and/or facilitating the removal of GGC letterhead supplies from GGC premises.

Your employment with GGC requires that you act in accordance with GGC policies, procedures, and the requirements of your position and employment. Three specific requirements of your employment with GGC are 1) the obligation to act in the best interests of the organization; 2) the obligation to maintain the confidentiality over GGC information and internal matters; and 3) the obligation of loyalty to GGC.

Your conduct over the recent period of time is unacceptable and must stop immediately. …

We view your conduct to constitute gross insubordination. Should you engage in any further misconduct of a similar nature seeking to injure GGC operations and/or reputation, you will be subject to further discipline which can include immediate dismissal for just cause without any intermediate disciplinary steps.

 

58. On June 27, 2016, Sterritt received a letter signed by Chief Barnes terminating his employment. Sterritt’s pay had been cut off as of June 23.  In his view, Barnes did not have the authority to terminate his employment because one board member did not constitute a quorum of the Board.  Sterritt characterized the letter as “bogus” and “soul destroying.”

 

59. In the circumstances, Olson sought to obtain legal advice with respect to the senior employees of the organization. On July 4, 2016, Olson directed Joseph to organize the necessary documents and information necessary to obtain a legal opinion, particularly with respect to McRae.  It is likely, given her conduct, that some members of the “old” Board were seriously considering the termination of McRae.  Documents were also compiled with respect to the employment of other senior employees, Sterritt, Elisabeth Harris and Sandra Harris.  Joseph testified that Olson told her that they needed to prepare for legal action.  Olson testified that Joseph acted under her instructions.  Joseph put together binders and files.  She received the documents for the binder and files from Olson.  She also developed and authored a chronology or index of documents and summarizing events.  She explained that she had been following the lawful instructions of her supervisor.  I accept that she was acting under instructions from her supervisor, Olson.  Joseph denied that she was trying to get people fired.  Joseph claimed that she did not feel comfortable with the work.  However, Joseph explained that she did not feel she could refuse to do the work because it was a lawful direction.  In the circumstances, given her relationship with these employees, I find it unlikely that Joseph did not approach the tasks of putting together the evidence with respect to McRae and the other employees without some glee or satisfaction.  Joseph worked on these tasks until Jul 28, 2016.  In any event, Joseph performed the work she was directed to do.  After that Joseph went back to her usual work as Lands Officer.

 

60. Following the “lock out” from the GGC office, members of the Band Councils from Gitanmaax, Kispiox, and Gitanyow held a number of meetings to address the leadership of the GGC. Sterritt and McRae, newly elected Gitanmaax Councillors, participated in these meetings.   On June 30, 2016, Chief Barnes and Chief Marj McRae sought support among the four Band Councils to “stabilize the organization,” referring to communications with INAC denying issuing instructions to McRae to lockdown the offices.  The conflict attracted media attention.  On August 8, 2016 an article in the Interior News featured an article entitled “Employees Locked Out of the GGC Office.”  McRae was interviewed for the article and provided information to various northern media outlets.  In the interview, McRae spoke of staff being “locked out” of the office, and a divided Board of Directors.

 

61. On August 9, 2016, Chief Marj McRae collapsed with an aneurism and passed away the following day. On August 19, 2016, following her funeral, a group of certain members of the four Band Councils, including Chief Sampson, Wilson, Roger Shriff, Victoria Green, Wanda Good, Kerry Nyce and two acting chiefs, entered and took control of GGC’s office and operations.  Olson was escorted out of the office.  The RCMP was present, and Olson testified that she found the experience very humiliating.  The group brought back McRae as Executive Director.  McRae telephoned the rest of the staff and asked them to return to work, which they did.

 

62. On Monday, August 22, when Joseph came to work, she was met at the front door by McRae. The locks on the doors had been changed. She was told to go home after getting a few personal belongings from her office.

 

63. After entering the office, McRae testified that she had found binders and files with documents seeking grounds to terminate herself and the other senior staff members, Sterritt, Sandra Harris, and Elizabeth Harris. McRae testified that she believed that Joseph was the “author” of the binders and files.  The content of the binders and files were documents from GGC’s office and supplied by Olson.  Joseph “authored” the chronology summarizing documents.  McRae convened a staff meeting and, she testified, brought the folders and binders into the staff meeting.  She questioned whether “we could move forward with Joseph on the team.”  Elisabeth Harris testified that she felt saddened to see that the Board was “trying to get rid of us” and that Joseph had compiled documentation in support of that.  Sandra Harris’ understanding was similar.  She admitted that she did not take a look at the binders, but that she was shown what they contained.  She felt there had been a “breach of trust” and she could not continue working with Joseph.  Sterritt did not recall if he actually looked at the binders.  At some point he flipped through them quickly.  Sterritt understood that the binders were intended for legal advice in an attempt to get rid of staff.  He testified he found this “heartbreaking”.  He did not see how he could continue working with Joseph.  McRae testified that staff did not feel they could trust Joseph and would not permit her to return to work.  In the circumstances, I find it more likely that the employees relied on McRae’s representation of the contents of the binders or files.

 

64. On August 23, 2016, at the meeting of the “new” GGC Board, the binders and folders, and Joseph’s role in compiling the documentation, were raised. The Board decided to “lay her off.”  The justification was that Joseph, in McRae’s view, had been taking directions from the “wrong” people, including Olson, and not her, the Executive Director.  From her view, according to the “posting” for the Board Liaison position, Olson was supposed to report to the Executive Director and the Board.  However, while the 2015 posting provided that Olson would be “accountable to the Board of Directors/Executive Director” and work collaboratively with the Executive Director, whatever role had been contemplated in the posting had been overtaken by the old GGC Board’s decisions and directives in 2016, and McRae’s persistent defiance of the Board.   While McRae conceded in cross examination that Joseph had been taking directions from Board members on the Litigation Committee, she felt that the GGC was being taking over by the Committee.  Joseph testified that she felt she was caught within the chaos of the organization, where two Board members attempted to address the chaos, trying to protect the GGC.  Now as it happened, she agreed or was aligned with those Directors on the Spookw  The fact remains that Joseph had been performing the work she had been directed to do as determined by the GGC Board.

 

65. There was no investigation of any alleged misconduct prior to the termination of Joseph. She was no allowed an opportunity to speak to the reasons for her “lay off,” i.e. termination.

 

66. On August 24, McRae mailed a letter to Joseph informing her of her termination of employment effective August 19, 2016, “due to extenuating circumstances.” On August 26, 2016 a ROE was completed for Joseph, stating the reason for termination as “laid off due to extenuating circumstances.”  Despite the use of the term “layoff,” McRae conceded that there was little chance of a recall because of Joseph’s alleged insubordination for a period of two years and her alleged role in the “lock out.”  The use of the code “K” on the ROE would likely trigger an investigation by Employment Insurance (“EI”) and a possible delay in Joseph’s EI.  In my view, given her lengthy experience in management McRae would have known that.  McRae agreed that she might have told EI that the reason for the “layoff” was because of the “broken trust.”  Joseph applied for EI, which was delayed until the completion of an investigation by the EIC into the circumstances of her termination.  She received EI, which ended in November 2017.

 

67. Joseph’s final paycheque was mailed together with the ROE and included two weeks’ pay in lieu of notice and 8 weeks’ severance pay. She was also paid out her accumulated overtime and unused annual leave.

 

68. On November 7, 2016 Joseph filed an unjust dismissal complaint with Labour Canada. On April 11, 2017, the GGC filed a response to Joseph’s unjust dismissal complaint. In the letter to Labour Canada, McRae wrote:

 

The Gitksan Government Commission (GGC) went through some very trying governance issues with a split board which starting occurring in January 2016. Eileen was involved in a Litigation case which was the cause of much dissention within GGC. I had as the Executive Director written to the Board on ten separate occasions between January and May 2/16 regarding not only my concerns but those of the staff. I attended two meetings where I spoke verbally to the concerns which remained largely undealt with to May 9, 2016 when I received two letters basically telling me to do what I am told and overturning administrative decisions I had made as the Executive Director involving Eileen. June 23, 2016 two rogue board members entered our offices and told the staff members present to leave the building and turn in their keys, I stated we would not do that unless a quorum of our board of directors was requesting it – our office door locks were changed and we were locked out. Eileen Joseph and a new hire Sandra Olson not yet though her probation period were the only staff members to remain.

The councils of all four member bands met June 30/16 and August 8/16 to try and bring a resolve to the situation but the same two board members refused to meet with the four councils. An action plan to re-stabilize our office was put in place and due to the untimely passing of one of the board members the four band councils did not regain control until August 19, 2016. I was instructed to contact the other locked out staff members to see if they were willing and able to resume their jobs with GGC. We returned to GGC August 22, 2016, upon entering my office (approx.7:45am) there was a 3″ binder on my desk which stated “prepared for legal counsel”, I naturally perused it. This binder was full of emails, letters, my letter of offer, my job description, letters of reprimand I had written and all the personnel issues I had to deal with going back to 2001,1 immediately recognized the handwriting of Eileen Joseph.   I was dumbfounded. I met Eileen Joseph at the front office door when she arrived at 8:30 and told her she could go home for the day and I would be in touch with her. Further investigation produced a second binder again full of my work going back to 2001, a file for Kent Law and an email wherein Eileen was praised for putting the binders together, this being done in an effort to find “just cause” to terminate me without having to pay a severance package. There was also written evidence that efforts were made to also terminate the GGC Social Development Advisor, Housing Coordinator and Finance Officer, collectively those of us who were locked out have 57 years with GGC. We had a staff meeting wherein I disclosed what I had found in my office – staff was mortified -the trust was definitely gone, it was strongly felt there was no possible way Eileen could fit into our “team” as due to the above events we already had an uphill climb to re-establish a healthy work environment.

 

69. The termination had a significant impact on Joseph. She explained that she had suffered significant financial hardship since the termination.  Joseph lived in a house on reserve, owned by her, making it difficult to relocate.  She had lost her job and income, earning a regular salary of $41,352.48 per year plus benefits, including extended health and employer RRSP contributions of 5%.  At the time of her termination she was 57 years old.  Her family lived around Hazelton, B.C.  Joseph testified that she intended to work until her normal retirement age at 65 in 2024.

 

70. From November 2017, when her EI ran out, and August 1, 2018 Joseph was forced to rely on credit cards, line of credit, and loans from family members. She maxed out her credit cards.  Her 91-year old mother helped her with groceries.  This was humiliating.  She took $20,000.00 out of her RRSP.

 

71. She decided not to have dental work done because of the loss of employee benefits.

 

72. Joseph testified that the termination had a significant impact on her mental health. She felt increasingly isolated from her community.  She felt she was a “loser” in a family of well-educated high achievers.  She found it difficult to be out in the public because the she felt that the people in the community “knew” of her situation, making going to the bank or grocery shopping hard.  She feared that people were operating under misinformation about the reason for her termination.  The financial circumstances added to her deep depression.  She explained she sank into a deep depression.  Joseph explained that she was on the brink of suicide, going to the “woodshed,” she felt she was close to the edge.

 

73. Joseph sought employment, contract work part-time and full-time employment without success. Joseph testified in detail about her effort to secure other employment after her termination.  Joseph provided documentary evidence of her efforts to obtain other employment.  She applied for numerous jobs, without success.  She searched Terrace and Smithers job sites, Indeed.ca website, Indian Band websites (extending from Moricetown, Burns Lake Bands, and Stoney Creek near Vanderhoof), and she regularly visited provincial and federal government websites searching for employment or contract opportunities.   She applied for contract work, part and full-time employment both in the Land administration area and general administration.

 

74. However, in August 2018, she finally found employment. Joseph entered into a part-time contract with the Gitanmaax Band for 20 hours per week, starting September 5, 2018 as Lands Officer.  As a “contract position” it did not come with benefits.  The position was scheduled to end March 31, 2019 with the possibility of an extension.  Her regular pay the first three months was $32.14 per hour and $35.56 for the next three.  For the six months the regular pay would be $17,638.40.

 

75. McRae testified that she researched potential job opportunities for Joseph in the immediate area. She generated a list in August 2016 and in September 2018.  In total there were 167 postings.  Of those she was of the view that Joseph would not qualify for 72 of the positions.  58 positions she was unsure.  McRae was of the view that 27 positions should have been acceptable according to Joseph’s resume and qualifications.

 

76. Joseph testified that a number of the positions suggested by GGC were with the Bands that had participated in her termination, were otherwise inappropriate (education assistant, receptionist, clerical, for example), were entry level positions (data entry, for example), or in areas that she had no experience (business management, for example). In other instances, she had interviews but was not hired.

 

Submissions

77. GGC submits that it had just cause for Joseph’s dismissal. When the member bands began questioning the amount of money being spent on the Litigation and the appeal, the Litigation caused a governance crisis within the GGC, and conflicts among its employees, resulting in the “lock out” of McRae and other employees.   GGC submits that “it is clear that none of this would have happened if not for the Litigation and the people working on that file.”  Moreover, Sandra Harris, Elizabeth Harris and Dennis Sterritt testified to a “prevailing concern that matters may not return to how they were at GGC prior to the Litigation and events in 2016.”   GGC claims that these employees were traumatized by the experience.   CCG suggests that it and its employees were victimized and traumatized by Joseph’s conduct.

 

78. GGC argues that Joseph’s conduct was fundamentally in conflict with her employment obligations, and that there was no alternative to her dismissal. Joseph (and Olson) knowingly took direction from a single board member who was a “fully invested in the Litigation.”   The Litigation was employing two of Joseph’s sisters and provided her with increased work hours and an inherent interest for them not to see the Litigation end.   Joseph (and Olson) made no effort to consult with the member band councils to appoint an alternate board representative when Chief Morgan and Chief Samson were unable to attend meetings.

 

79. GGC argues that Joseph took advantage of the political chaos in the communities. Until February 2016, Joseph’s direct supervisor was McRae. The organization chart up until February 2016 confirms that Joseph’s direct supervisor was the Executive Director, and therefore Joseph was required to take directions from McRae.   Joseph engaged in a pattern of insubordination going back to 2014 Joseph, taking directions from Board members, contrary to the proper reporting relationships.   In its reply, GGC states that Joseph took directions from Chief McRae and Chief Barnes, which was wrong because they have the authority to direct Joseph.  Only the Executive Director had the authority.

 

80. The trust relationship was undermind by Joseph’s conduct towards McRae and other staff. Trust is a key requirement.  The trust was “undermined by Joseph’s conduct towards GGC staff and by her full engagement in activities which took place during the summer of 2016 to undermine her colleagues.”  Joseph compiled binders and files to facilitate the dismissals of Sandra Harris, Elizabeth Harris, Sterritt, and McRae.  This could not be dismissed as a mere “personnel matter.”   GGC’s member Band Councils had to take action in order to save the organization.  Joseph’s conduct, targeting her supervisor (McRae) and three other long-term employees during the 2016 crisis, her extensive involvement of eight years, working very closely with those involved with the Litigation file, brought disrepute to the GGC, undermined its structure and put it at risk.

 

81. In the alternative, GGC submits that Joseph did not take reasonable steps to mitigate. GGC points to a number of positions that Joseph should have applied to after her dismissal.  Among those position were 12 postings for Band Managers.  The Glen Vowell Band posted a position for a Band Manager at the end of August 2016.  Joseph could have applied for that position and been employed as early as mid-September 2016.  Joseph testified that she did not apply for these positions because there were associations with the Councils that took control of the GGC in August 2016.  As Joseph subsequently accepted employment with Gitanmaax Band, her explanation for her failure to accept employment makes little sense.  There were at least 8 employment opportunities in the 6 months after Joseph’s termination that she should have applied for but simply chose not to.  When Joseph argues that she had to rely on her 90-year old mother for money for food and borrowing money, her position would have been different had she applied for work opportunities that were available.  In short, GGC submits that Joseph failed to take reasonable steps to mitigate her damages.

 

82. Briefly put, CCG says that it had cause for the termination of Joseph and, in the alternative, damages should be limited to the time from the dismissal to the time when she should have applied for reasonable alternate employment. CCG does not address other damages, including aggravated and punitive damages.

 

83. Joseph argues that there was no ground to terminate her employment and that the dismissal was unjust. She was a loyal and valued employee working difficult jobs in a responsive and respectful manner.  She denies being insubordinate towards McRae and says there is no evidence to support that.  Joseph carried out her duties as directed by her supervisors, first McRae, and later Olson.   She did the work she was tasked to do by the Board and its Directors.  Olson was formally her supervisor from the end of January 2016.  In 2016, and during the “lock out,” Joseph served the Directors as a loyal employee as they sought to stabilize the organization during difficult times.  She worked on the Litigation Committee since 2010 and carried out the duties assigned to her by the Committee.   She worked on the Litigation as directed by the Board of GGC.

 

84. With respect to compiling documents in support of the possible termination of McRae and other senior employees in the organization, Joseph denies that there was any “breach of trust.” The information was compiled for GGC to obtain legal advice with respect to McRae.  She carried out her duties as directed by her supervisor, Olson.

 

85. Joseph argues that the manner of the termination was harsh and reprehensible, resulting psychological and emotional harm, including included severe depression (with potentially devastating consequences via self-harm), isolation, anxiety, humiliation, negative impact on her family and community life, smeared her professional ethics and work reputation. She also argues that punitive damages are warranted, among others, because the Directors of GGC failed to investigate McRae’s fabricated grounds for termination.  Joseph also relies on McRae’s false post-termination representations, including to the EIC.

 

86. Joseph submits that she made reasonable efforts to obtain alternate employment and did not fail to mitigate.  She applied for numerous jobs, without success.  Joseph provided significant and detailed evidence of her efforts to obtain other employment.  When she was offered a part-time contract term position she accepted it.

 

87. Joseph seeks compensation for wage loss and loss of benefits, including pension and extended health; she also seeks aggravated and punitive damages for the manner in which she was terminated, the impact on her reputation, termination with no references, psychological and emotional impact during; and certain other remedies such as funding to assist in the calculation of remittances as a result of the termination, certain expenses, legal cost, a public apology and a letter of reference.

 

88. In its reply the GGC re-hashes its case in chief, seeking to justify the termination of Joseph. The GGC does not address the remedies sought by Joseph.

 

Analysis and Decision

89. The Canada Labour Code provides:

240(1)  Complaint to inspector for unjust dismissal

Subject to subsections (2) and 242 (3.1), any person

(a) who has completed twelve consecutive months of continuous employment by an employer, and

(b) who is not a member of a group of employees subject to a collective agreement,

may make a complaint in writing to an inspector if the employee has been dismissed and considers the dismissal to be unjust.

 

90. Section 240 of the Code refers to “unjust dismissal.” “Dismissal” is not defined in the   A “dismissal” may be defined as “an act or decision of an employer that has the effect of terminating a contract of employment” (Eskasoni School Board/Eskasoni Band Council v. Maclsaac (F.C. A.), [1986] F.C.J. No. 263, p. 3).  Likewise, there is no definition of what constitutes an “unjust dismissal” (Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29 (CanLII), para. 45-). However, employment standards legislation must be construed in a manner that extends the protection afforded by the legislation (Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, para. 32).

 

91. The use of the term “layoff” suggests the possibility of recall. Joseph was not laid off with the possibility of recall.  Joseph was terminated from her employment.  The question is whether it was “unjust.”  The Employer has the burden to prove that her dismissal was” just.”  To meet that burden the employer must “establish with proof that is sufficiently clear, convincing and cogent, on the balance of probabilities” that the dismissal was just (Joseph v. Tl’azt’en First Nation, [2012] CLAD No. 184, para. 10, additional reasons at 2013 CarswellNat 1099 (Borowicz, Can.Adj.), application for judicial review refused 2013 FC 767 (FCTD)).

 

92. In Wilson, the Supreme Court of Canada confirmed that III, Division XIV of the Canada Labour Code (Unjust Dismissal) provides protection for non-unionized federal employees from being dismissed without cause, aligning the protection from unjust dismissal for non-unionized federal employees with those available to unionized employees. Parliament had in mind the right that most organized employees have under collective agreements — the right to be dismissed only for “just cause.”  While the common law standard is simply whether the employer has “cause” for dismissal, “unjust” denotes a much more qualitative approach to dismissal cases.  “Unjust dismissal” includes the concept of progressive discipline, which generally requires employers seeking to justify the dismissal to demonstrate that they have made the employee aware of performance problems, worked with the employee to rectify them, and imposed “a graduated repertoire of sanctions before resorting to the ultimate sanction of dismissal.”  The right to dismiss on reasonable notice without cause or reasons has been completely replaced under the Code by a regime requiring reasons for dismissal.

 

93. In Iron and Kanaweyimik Child and Family Services Inc., [2002] C.L.A.D. No. 517, Adjudicator England stated:

 

…. In order to be considered “just”, an employer’s decision to dismiss must be (1) rationale, in the sense of furthering the legitimate business goals of the organisation; (2) proportional in the amount of harm the employee’s actions are causing to the production process; (3) made in good faith, non-arbitrarily and non-discriminatory; and (4) made in a procedurally fair manner.

The Employer has the burden to prove that the dismissal was” just.”  The employer must “establish with proof that is sufficiently clear, convincing and cogent, on the balance of probabilities” that the dismissal was just (Joseph v. Tl’azt’en First Nation, [2012] CLAD No. 184, para. 10, additional reasons at 2013 CarswellNat 1099 (Borowicz, Adj.), application for judicial review refused 2013 FC 767 (FCTD)).

 

94. The issue here is whether GGC had just cause to dismiss Joseph. Labour arbitrators and adjudicators have adopted the approach to this issue in the seminal decision in WM Scott & Co., [1976] BCLRBD No. 98, [1977] 1 Can. LRBR 1 (BCLRB), where (then Chair of the BC Labour Relations Board) Paul Weiler stated:

 

13     ….  arbitrators should pose three distinct questions in the typical discharge grievance. First, has the employee given just and reasonable cause for some form of discipline by the employer? If so, was the employer’s decision to dismiss the employee an excessive response in all of the circumstances of the case? Finally, if the arbitrator does consider discharge excessive, what alternative measure should be substituted as just and equitable?

 

95. This test is consistent with the decision of the Supreme Court of Canada in Wilson. In Scott, the panel included such factors as the seriousness of the offence, whether the conduct was premeditated, or repetitive, whether it was a momentary and emotional aberration, whether there was provocation, and the service and discipline record of the employee, including progressive discipline.

 

96. GGC submits that it had just cause for Joseph’s termination because of the Litigation and the significant impact on GGC, its employees and the Gitksan Nation.

 

97. The fact is that the Litigation happened. On the evidence it ended up causing conflict within the Nation (or the member bands), within the GGC and among its employees.  Joseph worked on the Litigation.  The Litigation Committee and GGC Directors assigned tasks to Joseph and she reported to it.  Ultimately, the assignment of tasks and reporting relationships was a matter for the Board to decide, not the Executive Director.  The GGC Board established a Litigation Committee comprised of the Chief Councillors from the Kispiox, Gitanmaax and Glen Vowell Bands, also directors of GGC, to provide political and legal direction to the Litigation.  While Joseph supported the Spookw Litigation and identified as such by other GGC staff, she enjoyed the work and took pride in it.  She was also close to the Chief McRae and Chief Barnes, who supported the Litigation.   There is no evidence that she did the Litigation work for any improper purpose or motive, as suggested by the GGC, such as increased hours for herself or benefitting her sisters.  In fact, in my view she tried to get out of the Litigation work in 2015, resulting in the hiring of Olson as the Board Liaison.   She did the work that both she and, in fact, GGC agreed at the hearing, that she was directed to do by the then Directors of GGC.  That evidence was clear.  Obviously, the fact that an employee works as directed by the employee’s employer cannot constitute just cause for termination under the Code.

 

98. The Litigation started in 2008. The Plaintiffs were six Hereditary Chiefs and included four Bands: Gitanmaax, Glen Vowell, Gitwangak, Kispiox and the GGC.  There is no evidence before me to suggest that the GGC did not become a plaintiff in the Litigation without support of the Board.  There is no evidence before me to suggest that the GGC did not continue its participation in the Litigation without support of the Board until 2015 – 2016.  Subsequently the Litigation became controversial.  In fact, until 2014, when the plaintiffs lost in the B.C. Supreme Court, the Litigation had been kept behind “closed doors” for a number of years without incident.  Ultimately, however, the Litigation impacted on the Board’s ability to do its job as a Board, including the apparent inability to obtain a quorum in 2016.  Joseph started working on the Litigation in 2010, when she was both Lands Officer and Executive Director.  She continued to work on the Litigation at the direction of the Board, both before and after the Litigation became a focal point of dispute and conflict.   The responsibility for the consequences of commencing and maintaining the Litigation rests with the GGC and its Board.  It cannot be attributed to Joseph.  The members of the GGC, the four bands, have the ability under the GGC constitution and bylaws and the legislation to address governance issues.  The responsibility does not rest with the employee like Joseph who, under instructions from her superiors, the Directors, worked on the Litigation.   Interestingly, according to the corporate records, the new Board included Chiefs Sampson, Barnes and Morgan.

 

99. On the evidence, the only intervening factor was that the Litigation increasingly became a focal point for political conflict in the community.  When the member bands began questioning the amount of money being spent on the Litigation and the prospects of success of an appeal, it caused a governance crisis within the GGC, and conflicts among its employees.  Again, in my view, the responsibility does not rest with the employee who, under instructions from her superiors, the Directors, worked on the Litigation.

 

100. The Board, representing the society’s members, the member bands, decides the mandate of the GGC, not the Executive Director. In 2008 McRae sought to have the Litigation kept at arms’ length from the GGC because, in her view, was outside its proper mandate of service and program delivery.  She did not want GGC to be involved in “politics.”  McRae was, of course, entitled to her view of the proper role of the GGC and its mandate.  McRae was supportive of those who wanted to bring the Spookw Litigation to an end and was seen as such.  When McRae became the GGC Executive Director in 2012, the Board respected her wish not to be involved in the Litigation.  McRae did not attend meetings of the Litigation Committee.  From 2014, McRae became more vocal in her opposition to the Litigation.  In McRae’s view that the Board had changed the organization, i.e. changed its mandate, was incorrect.   What had changed was the political context.  From early 2016, in my view, McRae defied and, in fact, engaging with others in the community, taking steps to oust the Board.  Both McRae and Sterritt ran for political office and were elected to Gitanmaax Council in June 2016.  In 2015 – 2016, much of the senior staff at the GGC followed her lead.

 

101. I disagree with GGC’s contention that Joseph’s conduct was fundamentally in conflict with her employment obligations and that there was no alternative to her dismissal.  The fact is that the GGC Board established a Litigation Committee comprised of the Chief Councillors from the Kispiox, Gitanmaax and Glen Vowell Bands, also directors of GGC, to provide political and legal direction to the Litigation.  This was the structure set up by the Board, decided upon by the Board.  It was “outside” the organizational chart.  It conflicted with the formal lines of authority, which could give rise to issues like those that arose in this case, authorizing overtime, approving leaves, and assigning work.  Until the Board decided on a new organizational chart in March and April 2016, all employees formally reported to the Executive Director, who reported to the Board.  No one else reported directly to the Board.  However, the practicality reality was different from the organizational chart.  With respect to the Gitanmaax land claims, she reported to and worked directly with Chief McRae.   Since 2010, Joseph had reported directly to the Directors on the Litigation Committee and, with their consent, tacitly or otherwise, to members of the Committee, with respect to that work.  She took directions from the Directors.  McRae acquiesced or condoned that state of affairs.  Even if taking Joseph directions as alleged constituted misconduct, and in my view it does not, McRae and GGC acquiesced in or condoned that state of affairs.  It is well established that “[a]n employer who voluntarily condones conduct that amounts to cause for dismissal is prohibited from relying upon the conduct as a basis for some subsequent dismissal” (Macdonald-Ross v. Connect North America Corp., 2010 NBBR 250, para. 47 (NBQB).  The fact that the new Board has a different view of Joseph’s Litigation work, does not change the fact that she did the work she was directed to do.   The responsibility for the Litigation and its consequences cannot be attributed to Joseph.

 

102. From early February Joseph reported to Olson, the Board Liaison, as decided by the Board. McRae took issue with Joseph for attending the February 11, 2016 Board meeting, going over her head to the Board, and of gross insubordination.   Joseph explained that she had been asked by the Board to attend the meeting.  Whether that was true or not, McRae was no longer her supervisor, Olson was.  It was not unreasonable for Joseph to tell McRae to “talk to Olson.”  McRae’s allegations of “continuing in subordination for two years” by Joseph was not supported by any credible evidence.  In any event, it is important to consider the reason for the incident, which was McRae’s unilateral decision to reduce Joseph’s three-day work week and put her on a “contract” for one day a week without benefit.   Elisabeth Harris, the Finance Clerk, agreed in cross examination that a “contract” would normally be in writing.  In Joseph’s case there was no written contract.   In my view, this was a punitive and retaliatory measure.  McRae did that in defiance of the Board’s decision that Joseph would continue with the Litigation work, which, in her view was outside GGC’s proper mandate.  Indeed, between February 8 and the end of June 2016, on at least five occasions Joseph’s pay cheques included only six regular days with pay and benefits, and a cheque for two days without benefit.  The fact is that McRae raised the issue of Joseph’s Litigation work with the Directors numerous times.  The fact is, as well, that the Directors confirmed that Joseph would continue to do the work.  Indeed, McRae testified that she directed Joseph not to work with or take instructions from the Litigation Committee or the Directors.  The reality, in this particular context, was that those directions were not hers to give.

 

103. Insubordination requires (1) a clear order (2) by a person in authority over the employee, and (3) willful defiance of the order (Chauvin v. Canada (Offices of the Information & Privacy Commissioners), 2012 PSLRB 66). Directing language that it threatening, or insolent towards and contemptuous of members of management, will amount to insubordination where such behaviour involves a resistance to or defiance of the employer’s authority (Southern Railway of British Columbia v. I.C.T.U., Local 7, [1996] B.C.C.A.A.A. No. 600).  Contemptuous and defiant comments towards management, insolent conduct, or conduct which undermines management’s authority can amount to insubordination (ADM Milling Co. and UFCW, Local 401 (Schoenberg), 130 C.L.A.S. 9).  An isolated incident of insolent or disrespectful behaviour is rarely just cause for dismissal.  In my view, Joseph was not insubordinate nor was she insolent.

 

104. Joseph knowingly took direction from a single board member who was a “fully invested in the litigation.” In my view, the evidence does not support this.  In fact, numerous decisions were taken by two or three Directors.

 

105. GGC submits that Joseph (and Olson) made no effort to consult with the member band councils to appoint an alternate board representative when Chief Morgan and Chief Samson were unable to attend Board meetings. There is no direct evidence that Chief Morgan and Chief Samson were “unable” to attend meetings.  They did not testify.   In the circumstances, it is more likely that they did attend for political reasons, and, in my view, ignoring their duties to the society as Directors.  Moreover, there is no authority for the proposition that Joseph had an obligation to consult with the member band councils to appoint an alternate board representative.

 

106. The trust relationship was “undermined by Joseph’s conduct towards GGC staff and by her full engagement in activities which took place during the summer of 2016 to undermine her colleagues.” Joseph’s role in compiling binders and files to facilitate the dismissals of McRae and other senior staff could not be dismissed as a mere “personnel matter.”   GGC’s member Band Councils had to take action in order to save the organization.  Joseph’s conduct, targeting her supervisor (McRae) and three other long-term employees during the 2016 crisis, her extensive involvement of eight years, working very closely with those involved with the Litigation file, brought disrepute to the GGC, undermined its structure and put it at risk.

 

107. I reiterate that I do not agree that the fact that Joseph worked on the Litigation, as directed by the Board, constituted just cause for her termination. Clearly, GGC suffered from significant governance issues.  In my view those cannot be attributed to Joseph.

 

108. In the circumstances, including the “lock out,” it was not surprising that Olson sought to obtain legal advice with respect to the employment of senior employees of the organization. McRae, if any, was a potential target for termination by the Board.  On June 26, 2016, Chief Barnes disciplined McRae for gross insubordination for injuring GGC’s operations and reputation, warning her that “any further misconduct … will be subject to further discipline which can include immediate dismissal for just cause ….”   On June 27, 2016, Sterritt received a letter signed by Chief Barnes terminating his employment.  On July 4, 2016, Olson directed Joseph to organize the necessary documents and information necessary to obtain a legal opinion, particularly with respect to McRae.  Olson told her that they needed to prepare for legal action.    Olson testified that Joseph acted under her instructions.  Joseph put together binders and files.  She received the documents for the binder and files from Olson.  She also developed a chronology or index of documents and summarizing events.  She explained that she had been following the lawful instructions of her supervisor.  I accept that she was acting under instructions from her supervisor, Olson.  Joseph worked on these tasks until Jul 28, 2016.  After that Joseph went back to her usual work as Lands Officer.  That is consistent with all the evidence.  Joseph denied that she was trying to get people fired.  Joseph claimed that she did not feel comfortable with the work.  However, Joseph explained that she did not feel she could refuse to do the work because it was a lawful direction.  In the circumstances, given her relationship with these employees, I find it unlikely that Joseph did not approach the tasks of putting together the evidence with respect to McRae and the other employees without some glee or satisfaction.  In any event, Joseph did the work she was directed to do by her supervisor, in this case Olson.  There was no breach of trust as alleged by McRae.

 

109. There is little doubt that work Joseph did compiling and organizing documents for the purpose of obtaining legal advice with respect to the termination of McRae and, likely, other senior staff caused some grief among those employees. McRae convened a staff meeting and brought the folders and binders into the staff meeting and questioned whether “we could move forward with Joseph on the team.”  The senior staff, Sterritt, Elisabeth Harris and Sandra Harris, testified that they felt that they could not trust Joseph and would not permit her to return to work.  Those feelings were not based on any considered and careful review of the documents and the circumstances.   They were likely based on McRae’s representation of the contents of the binders or files.  I accept that there were strong feelings among senior staff making Joseph return difficult to say the least.  That is not to say that such feelings could not have been overcome with effort and the will to do so.  In any event, the feelings among senior staff were not simply based on the revelation of the binders and files but on the history between Joseph and McRae’s senior staff.

 

110. The new Board considered Joseph’s alleged role in compiling the documents in its decision to terminate her employment, characterized as a “lay off.” There was no investigation of any alleged misconduct prior to the termination of Joseph.  Joseph had no record of prior discipline.  She was no allowed an opportunity to speak to the reasons for her termination.   The GGC discipline policy does not appear to have been considered.  In the circumstances, it cannot be said that the decision was made in good faith, non-arbitrary and procedurally fair manner (Iron and Kanaweyimik Child and Family Services Inc).

 

111. The Employer has the burden to prove that her dismissal was” just.” To meet that burden the employer must “establish with proof that is sufficiently clear, convincing and cogent, on the balance of probabilities” that the dismissal was just.  I have concluded that the Employer has failed to meet that burden.  The GGC did not have just cause to discipline the Complainant.  Therefore, the answer to the first question in  Scott & Co. Ltd. is “no.”   It follows that it is not necessary to address the second and third questions.

 

Remedies

112. Where an employee has been unjustly dismissed, the Code provides an Adjudicator with broad remedial powers. Section 242(4) provides:

 

4) Where an adjudicator decides pursuant to subsection (3) that a person has been unjustly dismissed, the adjudicator may, by order, require the employer who dismissed the person to

(a) pay the person compensation not exceeding the amount of money that is equivalent to the remuneration that would, but for the dismissal, have been paid by the employer to the person;

(b) reinstate the person in his employ; and

(c) do any other like thing that it is equitable to require the employer to do in order to remedy or counteract any consequence of the dismissal.

 

113. In Wilson, Abella J wrote:

47      The effect of the 1978 amendments was to limit the applicability of the notice requirements in s. 230(1) and the minimum severance provisions in s. 235(1) to circumstances that fell outside the Unjust Dismissal provisions. The notice and severance pay requirements under ss. 230(1) and 235(1), for example, apply to managers, those who are laid off due to lack of work or discontinuance of a function, and, in the case of s. 230(1), employees who have worked for the employer for more than three consecutive months but less than 12 months. In other words, ss. 230(1) and 235(1) are not an alternative to the Unjust Dismissal provisions in ss. 240 to 246, they apply only to those who do not or cannot avail themselves of those provisions… [notes omitted]

 

114. In Wilson, Abella J noted the difference between statutory and common law remedies for wrongful dismissal:

 

64      It is true that under s. 246, dismissed employees may choose to pursue their common law remedy of reasonable notice or pay in lieu in the civil courts instead of availing themselves of the dismissal provisions and remedies in the Code. But if they choose to pursue their rights under the Unjust Dismissal provisions of the Code, only those provisions apply. As Prof. Arthurs observed in his Report:

 

… the two types of proceedings differ most importantly in other respects.

 

The first relates to remedies. If successful in a civil action, an employee is entitled to damages equivalent to whatever compensation he or she would have received if the employment contract had been allowed to run its natural course — that is, for whatever period of notice would have been “reasonable.” If an employer has been unfair or high-handed in carrying out the discharge, the employee may be awarded additional damages. By contrast, if successful before an Adjudicator under Part III, an employee is entitled both to reinstatement and to compensation, not only for the duration of the notice period, but for all losses attributable to the discharge. These are potentially more extensive and expensive remedies than those a court might award.

[Emphasis added; p. 177, in Wilson.]

 

115. Under the Code, the employee is entitled to be “made whole” – i.e. placed in the same position the employee would have been in but for the unjust dismissal. In the words of Prof. Arthurs, being “made whole” includes “all losses attributable to the discharge.”  This may include reinstatement.  This may include wage loss, actual and future, compensation for lost benefits and pension (Royal Bank of Canada and Dolly DuFour (Can. Adj., 17 November 2017, unreported (Coleman)).  The employee is required to mitigate his or her damages.

 

116. In Harbour Air and Maloney [2012] CLAD No. 105 (Coleman, Adj.), Adjudicator Coleman reviewed the case law and discussed the “make whole” remedy. He concluded:

 

170      A better approach, I think, for cases when reinstatement is rejected, is to consider the whole period the damages are meant to cover, regardless of when the award of unjust dismissal/no reinstatement is made; but to be clear in the difference between what is meant to be achieved with reasonable notice and making a person whole when reinstatement is found to be untenable. The factors may seem similar, but the concepts and goals are quite different. The “make whole” goal is defined in Employment Law in Canada as “requir[ing] that the employee must be compensated for the difference between the financial position the employee would have occupied had he or she not been unlawfully dismissed; and (2) the financial position the employee occupies as a result of having been unlawfully dismissed”. Damages are paid for the loss of the job. By contrast, reasonable notice flows from a contractual obligation to cushion the blow of job loss by providing a reasonable period to look for other work where an employer’s obligation increases with the person’s length of service. Where there is a finding of unjust dismissal and failure to provide reasonable notice, damages are paid to put the person in the same position they would have been had reasonable notice been given — for the loss of reasonably notice. This payment would be expected to make the employee whole during the reasonable notice period that she was not given the opportunity to work. Under sec. 242 of the Canada Code, where reinstatement is not just a possibility, but the preferred option, damages are awarded to put the person in the same position they would have been had they not lost the job at all not simply been denied reasonable notice of that loss. Which necessarily translates as paid time and perhaps necessary expenses to find an equivalent replacement. That seems particularly appropriate where there is no contributory fault. Subject to mitigation obligations, if the person has not found an equivalent position by the time the decision is published that a wrongful dismissal has occurred, a reasoned but nonetheless subjective estimate should be made as to when it is likely that equivalent position will be achieved in the future, which may turn out to be a considerably greater time than what would be afforded by the courts’ consideration of reasonable notice which may have already past. There is thereby logic and connection between the wrong that was done and the damages awarded to make the person whole.

[Emphasis added].

 

117. As noted by Arbitrator Sims, unionized employment does not guarantee lifetime job security (Hay River Health & Social Services Authority v. P.S.A.C, 2010 CarswellNat 5733, [2010] C.L.A.D. No. 407, [2010] A.G.A.A. No. 66, 104 C.L.A.S. 204, 201 L.A.C. (4th) 345). Neither does employment under the Canada Labour Code.  The assessment of wage loss, including future wage loss, must factor in various contingencies, including such matters as “plant closings, bankruptcy, technological change, chance of layoff, chance of illness, quitting for other work and so on.”  These factors in many cases will reduce considerably the horizon of damages down. However, the appropriate discount depends on the individual circumstances. Similarly, the “likelihood of future employment elsewhere needs to be factored in, and if the individual is skilled and employable this too will significantly reduce the level of damage.”

 

Reinstatement

118. In the circumstances, Joseph did not seek reinstatement. She argues that the relations between the employees of this small organization, reinstatement is simply not possible.   The tension between Joseph and these employees even at the time of the hearing, two years later, was palpable.  I agree with Joseph.  In my view, reinstatement is not possible.  Accordingly, I make no order for reinstatement.

 

Wages and Benefits

119. Joseph suffered a wage loss, subject to mitigation, attributable to the termination of her employment. Prior to the termination of her employment Joseph was earning a regular salary of $41,352.48 per year.  Joseph worked for GGC for a little more than 11 years.  She worked in a relatively specialized position as Lands Officer.  There are few positions as Lands Officer available.  She also worked in support of the Litigation Committee.  She was 57 years old at the time of termination.  She explained that she had suffered significant financial hardship since the termination.  Joseph lived in a house on reserve, owned by her, making it difficult to relocate.  Her family lived around Hazelton, B.C.   She lived in small First nations community far from large cities.  She applied for contract work, part and full-time employment both in the Land administration area and general administration.  In August 2018, she finally found employment and entered into a part-time contract with the Gitanmaax Band for 20 hours per week as a Lands Officer.  As a “contract position” it did not come with benefits.  The position was scheduled to end March 31, 2019 with the possibility of an extension.

 

120. The contingencies considered in Hay River Health & Social Services Authority were not explored before me in any detail. Joseph testified that she would have worked another seven years until retirement.  While Joseph likely would have remained employed by the Employer past August 2016, given the change in governance with the new Board, McRae’s return to power as Executive Director, and her poor relationships with her fellow employees, I consider that she may well have left GGC for other employment at some point.  Even if the GGC were able overcame these personnel issues, its programs and services could change, such that Lands Officers become redundant.  Joseph could have been laid off.   There is always the chance of illness.  As well Joseph could have been offered employment and quitting for other work and quit.  In in my view, in all of the circumstances, 36 months’ salary, less mitigation and amounts by GGC upon termination, is a reasonable award in the circumstances.

 

121. I disagree that Joseph failed to mitigate her damages (see generally, Michaels et al v. Red Deer College (1975), 57 D.L.R. (3d) 386 (S.C.C.)).  The burden of proving a failure to mitigate rests on the Employer and includes both an onus to prove a failure to make a reasonable search, and that the dismissed employee would likely have found suitable employment if reasonable efforts had been made.

 

122. Joseph applied for contract work, part and full-time employment both in the Land administration area and general administration. Joseph testified in detail about her effort to secure other employment after her termination.  Joseph provided documentary evidence of her efforts to obtain other employment.  She applied for numerous jobs, without success.  She searched Terrace and Smithers job sites, Indeed.ca website, Indian Band websites (extending from Moricetown, Burns Lake Bands, and Stoney Creek near Vanderhoof), and she regularly visited provincial and federal government websites searching for employment or contract opportunities.  I do not accept that Joseph’s “contract” employment with the Gitanmaax after two years’ unemployment means that there was no basis for her not seeking work with those Bands involved with her termination.  In my view there were good reasons not to seek employment from those who had been involved, including the impact on her reputation from the termination.  Given the feelings in the community, her chances would be slight.  In my view, her efforts to find alternate employment were reasonable.   In my view CCG has failed to show that she failed to mitigate.

 

123. Her annual salary was $41,352.48, multiplied by three years equals $124,057.44. Joseph obtained part-time contract work starting September 2018.  For the six months the regular pay would be $17,638.40.  Given her training and experience as a Lands Officer, I think it possible that she would given an extension or, perhaps, get full-time or permanent employment.  Taking into account that possibility, I would deduct 50% from the regular pay for the extension period, $8,819.20.  She would earn $26,457.60 from the contract work.  The employer paid Joseph 10 weeks’ pay upon termination, $7,952.40.  From my calculations, the amount of wage loss is $89,647.44.  I award this amount.

 

124. GGC cancelled her employee benefit plan, which included dental coverage. As the result of her termination and cancellation of employee benefits, she chose not to have certain dental work done.  In the circumstances, I award 15% on accounts of all benefits, including loss of pension contributions, for the 36 months period of the wage loss, based on the GGC regular pay.  The total amount on account of benefits is $6,202.87.  I award this amount.

 

 

 

Expenses and Legal Costs

125. With respect to specific expenses, Joseph provided documentation for legal advice with respect to the termination in the amount of $2,200.41. Joseph also incurred costs in the preparation of binders of documents, photocopying, mail, travel and the like, $696.66.  She also incurred $1,628.68 for witnesses.  I find those to expenses reasonable and I order the GGC to pay them.

 

126. Joseph request an amount to assist her to obtain professional assistance with respect to calculation of EI repayments and remittances. In my view the $2,000 claimed is reasonable.

 

127. Joseph seeks unspecified legal costs on a full client-solicitor basis. There is little evidentiary basis before me to support this claim.  Joseph submits that her case is similar to Tl’azt’en First Nation.  In my Joseph request an amount to assist her to obtain professional assistance with respect to calculation of EI repayments and remittances.  In my view the $2,000 claimed is reasonable.

 

Aggravated Damages

128. Joseph seeks unspecified aggravated damages. She argues that the manner of the termination was harsh and reprehensible, resulting psychological and emotional harm, including included severe depression (with potentially devastating consequences via self-harm), isolation, anxiety, humiliation, negative impact on her family and community life, smeared her professional ethics and work reputation.

 

129. As a general rule, damages are not available to an employee for injuries that result from the fact that they have been terminated from their employment. However, compensatory damages may be awarded for injuries, including mental distress, caused by the manner of their dismissal, where the employer engages in conduct that is unfair or is in bad faith, such as being untruthful, misleading or unduly insensitive.   This flows from the employer’s obligation to act in good faith and deal fairly with their employees when they are dismissed.  Damages must reflect the actual injury suffered.  (Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 S.C.R. 362; Wallace v. United Grain Growers, [1997] 3 S.C.R. 701.)

 

130. In Joseph v. Tl’azt’en First Nation, 2013 FC 767, Tremblay-Lamer J. summarized the principles relating to aggravated damages as follows:

 

30 In my view, the adjudicator properly understood the principles relating to aggravated damages. He cited as an authority on the matter Kelowna Flightcraft Air Charter Ltd. v. Buchanan, 2010 BCSC 1650 (B.C. S.C.) at paragraphs 13 to 18 [Kelowna]. This decision summarized the Supreme Court’s guidance on aggravated damages that it set out in Keays and in Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701 (S.C.C.) [Wallace]. The principles summarized in Kelowna at paras 13 to 18 include the following:

• The term aggravated damages is used to refer to compensatory damages flowing from the manner in which employment is terminated (Keays, at para 62);
• Damages resulting from the manner of dismissal must be available only if i) they result from the circumstances described in Wallace, namely where the employer engages in conduct during the course of dismissal that is “unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive” (Keays, at para 57) and ii) if the manner of dismissal caused mental distress that was in the contemplation of the parties (Keays, at para 59);
• The term “bad faith” in reference to damages is to be given a broad definition and is not intended to refer to the kind of deliberate wrongful and malicious conduct that gives rise to a claim for punitive damages (Kelowna, at para 16 citing Keays, at paras 57-58);
• Examples of conduct in dismissal resulting in compensable damages include attacking the employee’s reputation by declarations made at the time of dismissal and misrepresentation regarding the reason for the decision (Keays, at para 59); and
• The employer’s pre-termination and post-termination conduct may be relevant to the issue of bad faith in the manner of dismissal, as an employee’s actual termination may be part of a larger pattern of conduct. The adjudicator referred to Kelowna, at para 18 citing Gismondi v. Toronto (City), [2003] O.J. No. 1490 (Ont. C.A.) at para 23, in which the Court of Appeal stated the following:

 

131. The manner of termination was, in my view, harsh and reprehensible and deserving of aggravated damages. GGC’s conduct meets the test in Wallace, (1) it was “unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive,” and (2) if the manner of dismissal caused mental distress that was in the contemplation of the parties.  GGC engaged in bad faith conduct.

 

132. First, McRae met Joseph at the door of GGC on August 22, 2016 and sent her home in the presence of a new employee. The locks on the doors had been changed.  As argued by Joseph, McRae could have brought her into her office for a private meeting.  She was permitted to pick up a few personal items.  I accept that the experience was very humiliating for Joseph.  Joseph drove home from the office stunned, dazed and in a state of distress.   A termination letter had not even been prepared.

 

133. Second, the matter came before GGC’s “new” Board on August 23, 2016.  Evidently, the matter of Joseph’s compilation of documents were raised at the meeting.  There was no investigation of any alleged misconduct prior to the termination of Joseph.  There is no evidence that GGC’s discipline policy was considered.  She was no allowed an opportunity to speak to the reasons for her “lay off.”  But McRae also testified to Joseph taking directions from the “wrong” people, including Olson and the Directors of the GGC.  The Board decided to lay her off due to “extenuating circumstances.”  In my view, Joseph did not engage in a breach of trust.  I accept that senior employees felt strongly about Joseph’s role in the compilation of documents.   Those feelings were nurtured and tainted by their mutual employment history and McRae’s representations.  There is no evidence that Joseph’s ability to work with other staff at GGC was seriously explored or considered.  In my view, as stated above, the reasons for her termination were her work on the Litigation as directed by her supervisor and the Board and, likely, a good dose of personal animosity from McRae.   The reasons for the termination were spurious and contrived.

 

134. Third, there was no evidence that GGC took action against any other employee or, for example, Directors for their role in the commencement and continuing the Litigation. This particularly striking and concerning when the “new” Board included Chiefs Sampson, Barnes and Morgan.  Joseph was singled out for special treatment.

 

135. Fourth, On August 24, McRae mailed a letter to Joseph informing her of her termination of employment effective August 19, 2016, “due to extenuating circumstances.” Her ROE stated “layoff” “due to extenuating circumstances.”  The termination letter stated that she was “laid off due to extenuating circumstances.”  Despite the use of the term “layoff,” McRae conceded that there was little chance of a recall because of Joseph’s alleged insubordination for a period of two years and her alleged role in the “lock out.”  Given her lengthy experience in management, McRae likely knew that the use of the code “K” on the ROE would likely trigger an investigation by Employment Insurance (“EI”) and a possible delay in Joseph’s EI.  This in fact happened.  McRae agreed that she might have told employees of the EIC that the reason for the “layoff” was because of the “broken trust.”   In my view, McRae misrepresented the circumstances of Joseph’s termination to EIC.

 

136. Fourth, from early 2016, McRae engaged in a pattern of conduct that could well be characterized as harassment and, as well, ongoing and persistent defiance of the Board. In my view her conduct was deliberate and intentional.  In February 2016, when the Board placed Joseph under Olson’s supervision, McRae unilaterally reduced her work week and put her on a “contract” for one day a week.  In my view, this was punitive and retaliatory.  McRae characterized the changed reporting relationship as the creation of “separate political and legal arm to the GGC.”  While the Board overruled McRae, it took months until June before Joseph’s pay and employee status was restored.   Moreover, McRae sought to discipline Joseph for gross insubordination for complaining to the Board about her reduced work week and change in status.  In early April 2106, the Board overruled her and the discipline was expunged.  The decision was made by three members of the Board, Chief Barnes, Chief Marj McRae and Chief Robert Samson.   As well, McRae raised concerns about the Lands Department budget, the workload, and Joseph’s alleged attendance issues, the real issue was Joseph doing the work she had been directed to do by the Board.  In addition, after the Board revised the organizational chart, McRae engaged in efforts to ostracize and isolate Olson and Joseph, including an attempt to move them out of GGC’s because of their “actions,” by – “disinviting” – excluding them from staff meetings, by engaging in discussions about confidential personnel matters, such as Joseph’s alleged insubordinate and disrespectful conduct at staff meetings.  McRae engaged staff in discussions about Olson and Joseph, including the Board’s treatment of McRae, Olson assigning work to staff under McRae’s supervision, the perceived “secrecy” of the Litigation Committee’s work, perceived conflicts of interest, family connections on one or the other side of Spookw, and the merits of the litigation.  In so doing, McRae created a toxic work environment for Joseph.

 

137. Fifth, on June 17, 2016, McRae sent letters to the GGC Board and the Band Councils of all four member Bands, which was sent out to some 30 recipients, seeking their intervention against the Board, mentioning Joseph: “… my authority as Executive Director has been diminished to the point of outright disrespect from the Lands Officer and Board Liaison.” McRae agreed that such communications were not common practice.  In an email dated June 24, 2016, McRae wrote to Council members of the four Bands and INAC concerning the June 23, 2016 incident, the so-called “lock out,” McRae stated:  “I am aware that Sandra Olson and Eileen Joseph have been in contact with people to replace Elizabeth and myself.”  In my view, McRae sought to tarnish Joseph’s reputation.

 

138. Based on her testimony, I accept that Joseph suffered depression due to the manner of termination. Joseph testified that the termination had a significant impact on her mental health.  She felt increasingly isolated.  She found it difficult to be out in the public because the she felt that the people in the community “knew” of her situation, making going to the bank or grocery shopping hard.  She feared that people were operating under misinformation about the reason for her termination.  The financial circumstances added to her deep depression.  From November 2017, when her EI ran out, and August 1, 2018 Joseph was forced to rely on credit cards, line of credit, and loans from family members.  She maxed out her credit cards.  Her 91-year old mother helped her with groceries.  This was humiliating.  She took $20,000.00 out of her RRSP.  She testified credibly that she sank into a deep depression.  Joseph explained that she was on the brink of suicide, she felt she was close to the edge.  Her testimony that she thought of going to the “woodshed” to end it, was, in my view, credible and heartfelt.   Joseph also testified about feeling like a “loser” because she lost her employment and compared herself to her well-educated and high-achieving successful sisters.  Again, in my view, this testimony was credible and heartfelt.

 

139. In Tl’azt’en First Nation, relied upon by Joseph, the Court upheld an award aggravated damages in the amount of $85,000.  In that case there were fabricated and malicious accusations regarding the employee, which included criminal wrongdoing, insubordination, blackmail and sexual assault.  In Schwarze and Liard First Nation, 2014 Can LII 51688 (Dorsey Can.Adj.), the Adjudicator awarded $10,000 in aggravated damages.   In Liard First Nation, the employer’s bad faith dismissal and its bad faith conduct before and at the time of dismissal did not adversely impact the Complainant’s ability to quickly find comparable employment in a responsible position.  In Wilson v. We Wai Kai Nation, 2018 CarswellNat 9027 (Love Can. Adj.), the Adjudicator reviewed the case law with respect to aggravated damages and found that the range for aggravated damages appears to be $10,000 to $100,000, based on the case law submitted by the parties.   In Wilson, the employee had been employed for 34 years.  A combination of events of changing work environment without reasonable notice, frustrating employee’s work by not providing information, and not addressing employee’s harassment complaints resulted in hostile work environment.   The Adjudicator awarded $45,000.

 

140. Considering the facts and the case law, in my view, an appropriate award is $40,000 for aggravated damages.

 

Punitive Damages

141. Joseph also argues that punitive damages are warranted, among others, because the Directors of GGC failed to investigate McRae’s fabricated grounds for termination. Joseph also relies on McRae’s false post-termination representations, including to the EIC.  She does not claim a specific amount.

 

142. I also have jurisdiction to award punitive damages, as noted in Tl’azt’en First Nation:

 

48 In Whiten v. Pilot Insurance Co., 2002 SCC 18 (S.C.C.) [Whiten], the Supreme Court made numerous conclusions regarding punitive damages and found that a proper award of punitive damages must look at proportionality in several dimensions, including the blameworthiness of the defendant’s conduct, the degree of vulnerability of the plaintiff, the harm or potential harm directed specifically at the plaintiff and the need for deterrence (Whiten at paras 111-126). Punitive damages should be resorted to only in exceptional cases and with restraint (Whiten at para 69). The focus is on the defendant’s misconduct, and not the plaintiff’s loss (Whiten at para 73). Furthermore, the overall award of damages should be rationally related to the objectives of retribution, deterrence and denunciation, for which the punitive damages are awarded (Whiten at paras 74 and 111).  Joseph v. Tl’azt’en First Nation

 

143. In Tl’azt’en First Nation, there were fabricated and malicious accusations regarding the employee, which included criminal wrongdoing, insubordination, blackmail and sexual assault. The circumstances were different from the case at hand.  GGC’s failure to investigate the grounds for termination and McRae post-termination statements are not in my view sufficient for punitive damages.

 

144. While there was bad faith in the manner and circumstances of the employer’s unjust dismissal, which, in my view, is not sufficiently reprehensible or malicious, harsh or vindictive to warrant remediation by ordering compensation in the nature of punitive damages to punish the employer.

 

Other Remedies

145. I am not going to order GGC to apologize to Joseph. In my view it is neither practical, helpful and I question whether I have the jurisdiction to do so.

 

146. I will, however, order GGC to provide a “tombstone” letter of reference to Joseph, setting out her the dates of her employment and positions held.

 

Jurisdiction

147. I retain jurisdiction over the interpretation and clarification of this decision and to make any order to enforce this decision and to collect payment of the compensation and interest I have ordered.

 

Decision

 

148. I make the following orders:

 

1. The Gitksan Local Services Society shall pay to Joseph $89,647.44 on account of wage loss;

 

2. The Gitksan Local Services Society shall pay to Joseph $6,202.87 on account of lost benefits;

 

3. The Gitksan Local Services Society shall pay to Joseph $4,525.75 on account of expenses related to the hearing of this Complaint;

 

4. The Gitksan Local Services Society shall pay to Joseph $2,000.00 for accounting services;

 

5. The Gitksan Local Services Society shall pay to Joseph $4,000.00 for legal costs;

 

6. The Gitksan Local Services Society shall pay to Joseph $40,000.00 on account of aggravated damages;

 

 

Vancouver, December 18, 2019

 

 

________________________

Ib Petersen

Adjudicator