Employer relied on victim’s delayed incident report but didn’t talk to employee or consider several mitigating factors
A Manitoba First Nations band must pay a former long-term employee $57,000 for unjust dismissal stemming from a poor investigation of a dubious accusation of workplace assault.
Nancy Thomas, 61, was hired in April 1995 by Shamattawa First Nation to be a building healthy community co-ordinator. Shamattawa was a First Nations community located in a remote area in northern Manitoba, which was only reachable by temporary winter roads or airplane in the summer. Thomas had lived in Shamattawa since 1966 after spending her early childhood in a residential school.
For many years, Thomas had her work directly assigned by the band’s chief and council and she worked as a counsellor and co-ordinator in the community without regular supervision. This changed in 2006, when the position of health director was created and Thomas was supervised by this individual, who reported to the band manager.
Thomas didn’t respond well to the change in reporting structure, and both the health director and band manager found she could be unco-operative and aggressive with them if they disapproved of her projects in the community. Sometimes, she challenged the band manager’s authority. In July 2006 and August 2012, Thomas was given letters warning her to conduct herself better. The 2012 letter described it as her second warning, though the first letter disappeared from Thomas’ file.
On July 8, 2015, the band manager saw another employee rushing to help a child who was pinned down by a fallen object in the band office. He learned of an altercation with that employee involving Thomas during the incident and was told by the chief and council to investigate.
The band manager spoke with various employees, and the one who had rushed to help the child told him that when he tried to get through a doorway to get to the child, Thomas pushed him against the wall with both hands. Other employees reported seeing Thomas and the co-worker in the same area. The co-worker created an incident report on July 19 after the chief and council kept asking him about it, stating that as he walked past Thomas and tried to move out of her way, she moved herself past him and pushed him toward the wall. The employee’s report stated that “I didn’t realize what she did at the time” and the next day Thomas told him that she had been working with the band for a long time and “she’ll fight for her job.”
Employee accused of assault
On July 22, the band terminated Thomas’ employment. The termination letter mentioned the “verbal and physical assault” of her co-worker as well as other bad behaviour towards other employees. It also cited disobedience towards leadership and refusal to carry out instructions as “serious misconduct warranting summary dismissal.” When Thomas contacted the health co-ordinator — her direct supervisor — it was the first the co-ordinator had heard about it.
Thomas denied any physical contact between her and the co-worker in the incident and claimed there were several employees who could corroborate that. She said there was no history of animosity between her and the co-worker and she wasn’t questioned as part of the band’s investigation.
A few days after her termination, Thomas attended a band council meeting to discuss her job. She claimed that when she spoke, one councillor pointed at her and said “because of all the things you did to my family in the past, I want to get you.”
Thomas filed a complaint of unjust dismissal. Shamattawa also mentioned improper use of a debit card, insubordinate conduct, withholding a bathroom key from a disabled person, and an inability to work with others as factors it considered in dismissing Thomas, though it didn’t provide any evidence of these.
The adjudicator found that Shamattawa didn’t properly investigate once it learned of the incident. There weren’t many witnesses that could definitely say the push happened, Thomas herself denied it happened, and the co-worker only filed an incident report after being prompted by the chief and band council. And most importantly, Thomas wasn’t interviewed to get her account — particularly since it should have been clear there were potential mitigating factors involved, from the emergency situation that featured people “scurrying about” and there was no prior animus between Thomas and the co-worker, said the adjudicator.
“(Thomas) was deliberately and systematically shunned and excluded, as was her workplace supervisor,” the adjudicator said. “I find that the investigation was a sham, plain and simple, so that no genuine effort was made to get to the bottom of what had actually happened, and as to how seriously it ought to be treated.
As a result of the improper investigation and the factoring in of unsubstantiated reasons for termination, the adjudicator found Shamattawa lacked good faith and fair dealing in its handling of Thomas’ dismissal, particularly with such a serious charge as assault of a co-worker. Not only did the band not properly determine if the push actually happened, it also took a leap in characterizing it as a “physical attack,” from which the alleged victim was uninjured and didn’t see the need to report it right away, said the adjudicator.
Without evidence of a real assault, the adjudicator found that Shamattawa had no grounds for dismissal — particularly egregious since Thomas was a long-time employee who was relied upon by many in the community. As a result, the dismissal was unjust, said the adjudicator.
Since Thomas was at a relatively advanced age, her opportunities were limited in the remote community, and she was entrenched in her role — community members still contacted her for help after she was terminated — Shamattawa was ordered to pay Thomas two weeks’ wages per year of service — 40 weeks — punitive damages of $10,000 for embarrassment and suffering from the bad-faith manner of her dismissal, and $9,000 in legal costs, for a total of $57,000.
For more information see:
• Thomas and Shamattawa First Nation, Re, 2017 CarswellNat 5067 (Can. Labour Code Adj.).
