December 8, 2015

Band Employee Awarded Severance for Unjust Dismissal

In a recent decision under the Canada Labour Code Part III, an adjudicator held that an employee of the Horse Lake First Nation Band (“the Band”) was constructively dismissed and awarded her more than 10 months wages as damages.

Tina Horseman filed a complaint claiming “unjust dismissal” with the federal Labour Branch of HRSDC. Ms. Horseman had been employed in two different roles with the Band. She was originally hired in 2003 as a recreation attendant in the Band’s gym. In 2014, she took on a new role as a teaching assistant to assist in a new, joint pilot project with a six-month term. She was paid by the Band, for one hour per day, and the School Division, for four hours per day. The pilot project was cancelled before the conclusion of its term.

Shortly thereafter, Ms. Horseman suffered a mental breakdown and was hospitalized for a week. She went on long term disability and advised the Band of her condition. A month later Ms. Horseman went to pick up her pay cheque and was informed that she no longer worked for the Band. Ms. Horseman requested an ROE and was told by the Band that they thought she had resigned and refused to issue her an ROE.

Ms. Horseman testified that she always intended to return to her role as the recreation attendant once the pilot project finished. The Band argued that Ms. Horseman told the Band Chief that she no longer worked for the Band, but worked for the School Division, and, consequently, her recreational attendant position was filled.

Legal test for abandonment of a position

The Adjudicator determined that Ms. Horseman did not quit her employment with the Band and had been unjustly dismissed. The Adjudicator noted that in order to satisfy the legal test for “abandonment of a position” it must be established that the employee: 1) intended to quit their employment; and 2) performed some act which evidenced an intention to quit their employment.

There was no evidence that Ms. Horseman intended to quit, as she testified she believed that once the pilot project came to an end she would return to her recreation attendant position. The Adjudicator also noted that the Band’s refusal to issue an ROE further supported the fact that she had not quit her employment.

Constructive dismissal amounted to unjust dismissal under Canada Labour Code

The Band’s refusal to allow her to return to her recreation attendant position, or some similar suitable position, resulted in a constructive dismissal, which amounted to an unjust dismissal under the Canada Labour Code. In this regard, the Adjudicator stated the following:

Since both Ms. Horseman and the Band were aware that the E-learning Program was a pilot project for a term of six months, I find that the Band ought to have returned Ms. Horseman to her position as a Recreation Attendant, or some similar, suitable position. Ms. Horseman testified that this is what she expected would occur. A reasonable person in that position would expect the same. For the Band to take the position at the hearing that it would have terminated Ms. Horseman’s employment or continued to employ her for one hour per day is unreasonable and defies logic and common sense.

The Adjudicator awarded Ms. Horseman two weeks wages in lieu of notice of dismissal, severance pay of 22 days salary, plus wages from February 1, 2015, to the date of the decision in November 2015.


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