Complaints, evaluations, notices and a firing

Native band employee fired after self-evaluation much higher than actual evaluation

This instalment of You Make the Call features a First Nations band employee who contested her dismissal for poor performance.

Lina Williams was hired in October 1999 by the Alexis Creek First Nation, a First Nations band in the British Columbia interior, to be its drug and alcohol counsellor. In January 2006, she became the band’s education co-ordinator. Williams started the new position with a three-month probationary period.

On Nov. 21, 2006, Williams received a written notice for poor performance in a memorandum from the band manager. The notice indicated the band had concerns “in regard your competency and skills in fulfilling the tasks required of you” — such as failing to follow the band’s and national policies in making her decisions. The band manager stressed the importance of following policies and Williams responded that she was performing her duties “the way it’s been done in the past” — a reference to Williams’ close relationship with a band councillor who was her predecessor as education co-ordinator.

The band was also concerned that Williams didn’t contact parents of students to let them know of policies affecting their children and failed to actively participate in the band’s education meetings.

There were no records to indicate any follow-up after the notice was given to Williams.

In April 2008, Williams received a second notice for poor performance, this time from a new band manager who had been on the job for one month. The letter was the result of a request for a wage increase by Williams, after which prompted the band council to list concerns about her performance. The wage increased was granted with conditions: Follow up on student request, weekly visits to the elementary school to keep track of what was going on, more communication and visits to the high schools, attend more student-related events, and spend time in the band office within her department.

The new band manager followed up with Williams every two weeks to check on her progress for some time, then shifted to a monthly basis. Williams made progress, but slowly. There continued to be complaints about her performance for things such as denying funding requests or being late in providing letters of reference, though the band manager felt many of these came from misunderstandings that could be rectified through better and more clear communication from Williams.

By 2007, many of the band councillors felt Williams was prone to unprofessional conduct such as not keeping up-to-date on reports, sitting in other peoples’ offices and not maintaining regular contact with the band’s schools. In September 2007, the council received a petition signed by seven students that expressed concern about Williams’ attitude, which characterized her as “grumpy, hard to talk to or rude.” However, the band chief felt this petition came from disgruntled students whose applications for living expenses grants for attending school away from home had been rejected.

A new chief and some new councillors took office in January 2010, and they implemented employee evaluations for the first time in quite a while. In April 2011, all staff were asked to do a self-evaluation on 15 factors and a panel also rated their performance. Williams was concerned because she was the former chief’s cousin and her connections with the old regime could put her on the outs.

Williams received the worst rating from the panel — 11 “needs improvement,” one “satisfactory” and three “meets expectations,” with one not applicable — while her self-evaluation was the highest of all the staff. Hers was the only self-rating that was significantly different from the panel.

According to the panel, Williams’ weaknesses were communication skills, listening skills, response to requests, personal opinions not kept confidential, poor relationships with students and co-workers, accountability, organizational skills, and student trust.

After a few more letters from students over the next year-and-a-half, the band decided to terminate Williams’ employment. On Dec. 13, 2011, it gave her a letter of dismissal that stated “this is the third and final written notice for poor performance.”

You Make the Call

Did the band have just cause for dismissal?
Was Williams unjustly dismissed?

If you said Williams was unjustly dismissed, you’re right. The adjudicator found there were concerns about Williams’ performance from the outset and the staff evaluations were “fairly and objectively carried out.” The discrepancy between her self-evaluation and the panel’s unanimous evaluation led to the conclusion that Williams’ “highly positive self-evaluation was unrealistic and gave evidence of the (panel’s) assessment that she ‘does not take direction well.’”

The adjudicator found the band established that Williams was not performing “the duties and responsibilities of her position to an acceptable standard, and had shown little or no willingness or ability to make up for the deficiencies that were so often noted.”

However, the band did not proceed with appropriate discipline — the first memorandum for poor performance had no penalty or warning and couldn’t be considered a disciplinary measure, said the adjudicator. The second notice contained a “mixed message” because it came with an approved wage increase with conditions that Williams could assume she met because the increase was never withdrawn. Finally, the 2011 evaluation did not come with any warning that if she didn’t improve she would be fired, said the adjudicator.

The adjudicator determined the band was entitled to dismiss Williams but not for cause. The band was ordered to pay Williams eight months’ salary in lieu of notice. See Williams and Alexis Creek First Nation, Re, 2013 CarswellNat 1536 (Can. Labour Code Adj.).

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