First Nations band’s workers sent home during power struggle; dismissal was punishment for not supporting faction of councillors who took over: Adjudicator
A Saskatchewan First Nations band must pay two former office workers more than $150,000 total for unjustly dismissing them during a period of political infighting among the band's leadership.
Nicole Sylvestre and Cheryl Benjamin worked for the Buffalo River Dene First Nation band (BRDN) in northwestern Saskatchewan. Sylvestre was hired in October 2001 and was a finance clerk in the band office, while Benjamin was hired in April 2013 as a receptionist in the band office. Both were members of the band.
In early 2014, BRDN was in a state of turmoil. One of the band councillors was charged with two counts of assault — on another councillor and on a band employee — as well as uttering a death threat against the band manager. All of these incidents happened at the band office, where both Sylvestre and Benjamin worked, and on the same day as one of the assaults and the death threat, the band chief was charged with assaulting the band manager’s husband and being intoxicated on the reserve.
Sylvestre and Benjamin witnessed part of the March 31 incidents — Sylvestre saw the councillor come into the office and verbally threaten the other councillor who was eventually assaulted. Benjamin saw the councillor chasing the employee that was eventually assaulted. Both feared for the safety of themselves and other employees in the band office, so Benjamin called the RCMP and they left work.
A few days later, the band chief submitted his resignation, leaving a leadership vacuum. Another councillor decided to hold a community meeting, where it was decided to hold an election. Benjamin made posters notifying band members of the meeting.
However, there was a group of councillors and band members who didn’t want the chief to resign or an election, led by the councillor charged with the assaults. They felt the councillor who organized the meeting didn’t have the authority to do so, so they told the chief his resignation wasn’t accepted.
The decision to reinstate the chief led to a dispute over band property and finances. The dispute led to tension and confusion in the band office between two opposing factions — those who reinstated the chief and those pushing for an election. The councillor pushing for the election was given a termination letter by the other faction, but refused to accept it.
Office employees sent home during leadership dispute
The pro-election councillor, at the direction of another councillor, made an announcement over the intercom on April 14 at the band office telling employees to go home until the dispute was sorted out. One councillor told the employees, “don’t worry, you’ll still have your jobs.”
The pro-chief faction proceeded as if the pro-election councillor was terminated and resumed operations at the band office. They took a few days to get things settled and some employees returned to work. However, some — including Sylvestre and Benjamin — weren’t sure about returning. Sylvestre in particular had reported to the pro-election councillor and Benjamin, like many in the community, supported an election and was uneasy returning to work with the pro-chief faction in control.
An office employee was instructed to call the employees who hadn’t yet returned and tell them to come back or they would be considered to have abandoned their jobs. Only one employee was successfully reached that day and she returned to work. There was no answer at Sylvestre’s home and a message was left with Benjamin’s mother, but BRDN didn’t follow up with employees’ it had failed to contact on the first attempt.
On April 28, two weeks after the employees had been sent home, the chief and council had a meeting with Indian and Northern Affairs Canada. One councillor proposed the employees were who still off work be reinstated, but instead a resolution removing signing authority for financial matters for Sylvestre, the pro-election councillor and others. There was also a discussion about dismissing Sylvestre, Benjamin, and the employee assaulted by the pro-chief councillor.
Dismissal for abandonment of position
Sylvestre and Benjamin soon received termination letters dated May 5, stating they had abandoned their positions based on an unauthorized order from “a gathering of rogue band members” and their employment was terminated when they failed to return. They both filed unjust dismissal complaints, arguing that it was reasonable to leave work as directed by the pro-election councillor given the “uncertainty and poisoned atmosphere” in the office. In addition, they said they weren’t warned they would be terminated if they didn’t return to work.
The adjudicator found there was no doubt the band office was closed temporarily because of “the chaos and political turmoil” and this was a reasonable direction by the pro-election councillor, regardless of who had authority. The adjudicator also noted that all employees left, not just Sylvestre and Benjamin, and they had no choice.
The adjudicator also found that though the office reopened, Sylvestre and Benjamin remained off work because they thought it was the right thing to do — the community had voted for an election, meaning the old council had been discharged and the pro-election councillor was running things until the election. In addition, the atmosphere at the band office was not favourable to them if they did return, said the adjudicator.
“The degree of dysfunction in the workplace was significant as evidenced by the criminal charges against the chief and (the pro-chief councillor). There is no doubt in my mind that the (pro-chief) faction viewed Sylvestre and Benjamin as enemies, for want of a better term,” the adjudicator said. “It would be unreasonable to expect that Sylvestre and Benjamin would return without some assurance that the infighting was over or, at the very least, that the situation at the band office was stable.”
The adjudicator pointed out that there was no follow-up in writing to the two employees indicating they should return to work, and no-one in the office actually spoke to either of them to say they were expected back. In addition, the April 28 meeting had a motion proposed to reinstate Sylvestre and Benjamin, indicating they were already terminated, said the adjudicator.
“It is no stretch to conclude that (Sylvestre and Benjamin) were being punished because they questioned the authority of (the chief and his faction), not because they hadn’t returned to work,” the adjudicator said.
