First Nations band turfs councillor who rocked the boat

Court awards Wallace damages on top of notice after band employee was fired and subsequently accused of theft

The British Columbia Supreme Court has awarded $24,300 to a woman who was fired from her position as health co-ordinator for the Alexis Creek Indian Band near Williams Lake, B.C., in 2005 then was subsequently accused of stealing laptop computers from the 600-member band.

Geraldine Solomon, 32, a member of the band, was first elected to its council in 2000 and held the finance portfolio. The other six members of council were directly related to her. In August 2003, Solomon was hired to be the band’s head-start co-ordinator. She wasn’t fully qualified for the position since she wasn’t a teacher, but she refined the position and oversaw and designed the program to teach children to speak Chilcotin, the band’s native language. Solomon also developed curriculum, wrote reports and proposals and obtained funding. Her position was not formally approved by the band council and she didn’t sign an employment contract.

The band signed an agreement with Health Canada in April 2004 to provide health programs and services, which included creating the position of health co-ordinator/director. In May, Solomon went to the band manager to discuss the overlap between her position and the health co-ordinator job. The band felt it was cost effective to combine the two jobs into one and, in September 2004, Solomon was hired as the band’s full-time health co-ordinator. There had been no posting for the position, no formal interview process and Solomon didn’t have all the qualifications for the job. According to the employment policy, none of the council members would have been eligible to vote on her appointment because they were all related to her. It was noted by the court that neither the chief nor councillors had any issue with Solomon’s appointment. She subsequently asked for a pay increase to $20 from $14.25 an hour, which the band manager approved without submitting the matter to council.

In early February 2005, Solomon called a meeting to discuss the band manager’s removal as president of the band’s enterprise company. Solomon objected to matters being decided by council without a quorum and without all councillors knowing what was happening. Other councillors were angry with her for calling the meeting and asked her to step down as a councillor. The chief said he learned for the first time at that point that the plaintiff was the health co-ordinator.

Solomon received a letter on Feb. 16, 2005, stating the council had rescinded her position since it was given without the chief or council’s knowledge and the council wanted to repost the position and go through the proper process.

The chief subsequently wrote to a representative of Indian and Northern Affairs on March 24, 2005, requesting Solomon be removed from her councillor position, stating she had been “fired” as the health director because “she created conflict between her and the community health representative by using her position as band councillor.”

After demanding six weeks’ severance pay, Solomon moved to Williams Lake to try and find employment, but except for a brief period she remained unemployed.

“There are few employment opportunities at the isolated reserve and the plaintiff was effectively blackballed from any of them,” the court said.

After her dismissal, the band’s chief reported to the RCMP that Solomon had stolen two laptop computers from the health clinic. One computer had been used by her and another was used by the clinic’s nurse. Solomon returned the computer she had been using in mid-March, but no one from the band informed the RCMP. As a result, the RCMP continued to pursue her, even stopping her while driving to ask questions while her family was in the car. No criminal charges were laid.

The court concluded none of the causes listed by the band were established to justify Solomon’s dismissal, which included giving herself a raise in pay without the council’s knowledge or approval, insolence towards the council and its members and unjustifiably increasing the work hours of the health receptionist.

Considering Solomon’s age, limited education and work experience, two years of employment with the band and the fact she had to move to find employment elsewhere, the court decided a five-month notice period was appropriate and damages of $15,200 were awarded.

In addition, the court extended the notice period due to the manner of dismissal, citing Wallace v. United Grain Growers Ltd. The court described the band as acting “in an out-of-control and high-handed manner,” and giving “no proper notice or procedure, contrary to established policy.” The court found the band then “callously accused (Solomon) of theft with no basis for belief that (she) ever intended to steal her work computer, let alone the computer used by the nurse at the health clinic.” The band’s attempt to have Indian and Northern Affairs remove her as a councillor made the situation worse. The court awarded a further three months to the notice for total damages of $24,300.

The court ruled Solomon did not breach her fiduciary duty as a band councillor.

“Incompetence or failure to obtain the best result does not constitute breach unless there is also the stench of dishonesty or disloyalty,” the court said.

For more information see:

Solomon v. Alexis Creek Indian Band, 2007 CarswellBC 678 (B.C. S.C.).

Ann Macaulay is a Toronto-based freelance writer.

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