1 FMCS File # YM2707-11144 in the MATTER

FMCS File # YM2707-11144

IN THE MATTER OF AN ADJUDICATION UNDER DIVISION XIV - PART III OF THE CANADA LABOUR CODE UNJUST DISMISSAL ADJUDICATION

JAMES WILSON

WE WAI KAI NATION/CAPE MUDGE INDIAN BAND

Before: Paul Love, Adjudicator

Hearing at Campbell River on July 16 - 20, 2018

August 24 2018 (video conference submissions)

Richard Johnson and Paula Krawus, for Mr. Wilson

Chris Martin and Cassandra Drake, for the Wei Wai Kai Nation

DECISION

Overview

[1] On February 10, 2017, the We Wai Kai First Nation (WWK or the employer) terminated Mr. James Wilson, an employee with 34 years’ service, from his position as its governance officer.

[2] Mr. Wilson filed a complaint under Part III of the Canada Labour Code. I was appointed to hear and decide this complaint. The parties also asked me to hear and decide a claim for damages under the Canadian Human Rights Act, R.S.C. 1986 c. H-6 (CHRA) alleging discrimination on the basis of disability, which is connected to this Part III matter.

[3] Part of this case rests on the characterization of how Mr. Wilson’s relationship with the employer ended. There is no evidence that Mr. Wilson failed or refused to perform work assigned. There is no evidence that his productivity had slipped. He was never warned about his productivity. Mr. Wilson’s work was frustrated by Mr. Brian Kelly, the WWK’s manager, after the employer introduced change. Mr. Wilson took a lengthy holiday between July 8 and early November 14, but he had substantial accumulated leave.

[4] In substance, this case is about change deliberately introduced by the employer about the nature of the work performed by Mr. Wilson and his hours and place of work. The employer introduced unilateral changes to require Mr. Wilson to work 8:00 a.m. to 4:00 p.m. at the WWK office, when this had not been a requirement in his previous 34 years of employment with the WWK. The WWK simply introduced this change with the intent to deprive Mr. Wilson of the flexibility to do outside remunerative work. There is no requirement in Mr. Wilson’s relationship with the WWK that he devotes his exclusive efforts to them, and he had a long history of outside work. Mr. Wilson took a consulting contract with Inter Tribal Health (ITHA) which commenced in June 2016 for a term of one year.

[5] The employer alleges that Mr. Wilson was terminated because he was ungovernable, mainly because he refused to attend and work an 8:00 to 4:00 schedule at the WWK’s office, but he clearly and repeatedly pointed out that he did not accept the employer’s right to change his hours or place of work without

reasonable notice to him.

[6] Mr. Wilson never worked again for the WWK after the employer directed him on November 14, 2016 to work at the WWK’s office between 8:00 a.m. and 4:00 p.m. The employer also alleges that Mr. Wilson failed to provide it with justification for a medical leave, which commenced immediately after the employer’s direction of November 14, and which continued until the date the WWK terminated his employment.

[7] An employee is not required to accept a fundamental change and can elect to terminate the contract and sue for damages. What happened here is that the employer ended up terminating Mr. Wilson’s employment.

[8] I have found that Mr. Wilson was unjustly dismissed. He engaged in conduct which merited some discipline : a failure to fully disclose his relationship with ITHA and failing to provide more detailed medical information. This did not warrant termination but warranted a one week suspension without pay. I have taken the monetary value of a one week suspension into account in assessing damages. He is entitled to aggravated damages for the manner of his dismissal. I have not awarded damages under the CHRA as I am not satisfied that Mr. Wilson has proven on a balance of probabilities that he was disabled, or that the employer’s termination related to a perceived disability.

Issues

[9] The issues that I have to decide in this case are:

1. Did Mr. Wilson resign his position, abandon his position or was he dismissed by the employer?

2. Did the employer have just cause to impose some discipline on Mr. Wilson?

3. Was termination of his employment excessive in all the circumstances of 3

the case?

4. What alternative measures should have been imposed as just and equitable?

5. If the dismissal was unjust what is the entitlement of the claimant to damages under Part III of the Code?

6. Did the actions of the employer amount to discrimination and a failure to accommodate the claimant on the basis of disability under the Canadian Human Rights Act?

7. If so, what damages should be awarded?

Position of the Parties

[10] I have attempted to summarize the position of each party briefly. The parties filed helpful and lengthy written submissions and a joint book of authorities (47 cases).

The Employer’s Position

[11] The employer says it has ground to terminate Mr. Wilson because:

 he willfully refused to obey the employer’s directions to work at its office from 8:00 to 4:00;  he refused to carry out work assigned by the employer;  he failed to disclose that he was working for another employer, the ITHA;  he failed to provide medical justification for his absence from work when the employer requested he do so;  he unfairly criticized his supervisor, other employees and the counsel and made false allegations of harassment.

[12] The employer says it is entitled to rely on cause discovered after termination of Mr. Wilson’s employment – that he had taken work with ITHA that precluded him from working for the WWK.

[13] As a result of his actions, the employer says that Mr. Wilson was 4

insubordinate, ungovernable and it had just cause to terminate him.

Mr. Wilson’s Position

[14] Mr. Wilson argued that he served the employer faithfully for 34 years. His job had significant flexibility. Mr. Wilson was entitled to engage in consulting activities. He did so and this did not interfere with the performance of his duties for the employer. The employer knew he was engaged in outside consulting activities and this was condoned over many years.

[15] The employer, without notice, attempted to change Mr. Wilson’s hours and place of work. The employer created or permitted a hostile work environment and ignored harassment complaints filed by Mr. Wilson. He was constructively dismissed by the employer. He is entitled to damages, including aggravated damages for the matter of the dismissal.

[16] Mr. Wilson suffered from emotional distress as a result. The WWK violated the CHRA and discriminated against Mr. Wilson, as it dismissed him when he was suffering from a disability and unable to work.

The Employer’s Reply

[17] The employer submits that Mr. Wilson had a duty to follow reasonable management instructions, and his failure to do so over a period of time was insubordinate. His answer to the reasonable instructions was to file false harassment complaints. Mr. Wilson’s conduct in failing to follow instructions, filing harassment complaints, failing to disclose that he was working for ITHA and failing to respond to requests for medical records shows that he was ungovernable. On the issue of damages, if an award for aggravated damages or damages under the CHRA are made it should be minimal as Mr. Wilson was highly functional. He was

able to work for ITHA and complete courses. The employer responded on some issues related to the calculation of sick leave that the WWK’s records should be preferred as Mr. Wilson did not track his use of sick leave.

The Evidence

[18] I have not recited the voluminous testimony, documents or all of the case law provided to me in a five day hearing, with a further half day of video conference submissions. I heard from Chief Brian Assu and Mr. Brian Kelly on behalf of the employer. I heard from Mr. Wilson, Dr. Brian Carswell and Mr. John Taylor (psychotherapist) on behalf of Mr. Wilson. Mr. Taylor testified by video conference from Japan. The parties supplied an agreed statement of facts, four exhibit books as well as some loose exhibits. I have set out my critical findings of fact.

[19] This case, like many, involves assessing disputed evidence, and there are significant issues of credibility of witnesses. In assessing disputed evidence I considered the test in Faryna v. Chorney, [1952] 2 D.L.R. 354 (B.C.C.A.) “. . .the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place or circumstance.”

[20] In my view Mr. Kelly, Chief Assu, the WWK and Mr. Wilson had an interest in the outcome of these proceedings. While Mr. Kelly, the employer’s principle witness is now retired, he has an interest in protecting his reputation as a manager. The employer has a pecuniary stake in the outcome of these proceedings, as well as a reputational stake, given that Mr. Wilson has alleged misconduct against councillors as well as a violation of the CHRA. Mr. Wilson has a pecuniary stake as well as a reputational stake in the outcome of these proceedings.

[21] When there is a conflict in the testimony, I prefer Mr. Wilson’s testimony over that of Mr. Kelly. Mr. Wilson approached the questions, both in examination-

in-chief and cross-examination in a careful, thoughtful and respectful manner. He provided full and detailed information. He made appropriate concessions. His evidence was cogent, reliable and had a ring of truth.

[22] Mr. Kelly approached the giving of his testimony in a flippant manner. He was argumentative and evasive in responding to questions put to him by Mr. Wilson’s counsel. He refused to respond to certain questions.

[23] I place little weight on Mr. Kelly’s version of events that he was simply trying to direct Mr. Wilson to do what council instructed. Mr. Kelly claims that this was a case of “shoot the messenger” and Mr. Wilson simply did not like what he was hearing and fabricated claims of harassment. I do not accept this testimony.

[24] The employer did not call any of the councillors who appear to have been disgruntled with Mr. Wilson and appear to have been providing some direction to Mr. Kelly.

[25] In essence, Mr. Kelly supplied the strategy to a faction of council who wanted to get rid of Mr. Wilson. Mr. Kelly advised council that they could not terminate Mr. Wilson for engaging in remunerative activities outside of work, that a process had to be followed and that the first step was to get Mr. Wilson back into a work schedule at the office. I find on a balance of probabilities that Mr. Kelly knew that imposing a rigid work schedule would impact on Mr. Wilson’s ability to do consulting work and that is why he suggested this approach at least to the faction of council who did not support Mr. Wilson.

[26] Mr. Kelly failed to clearly communicate with Mr. Wilson during most of the period in question – up until November of 2016. He ignored Mr. Wilson’s questions and requests for assistance. He provided partial information to Mr. Wilson. Mr. Kelly incorrectly advised Chief Assu that he had dealt with workplace issues raised by Mr. Wilson.

[27] I have largely accepted the testimony of Chief Brian Assu. I note that Chief Assu was in a difficult position at the hearing. He is Mr. Wilson’s cousin. As the Chief, he chairs the council meetings and only votes when there is a tie. It is council that sets the agenda for meetings, not Chief Assu.

[28] Chief Assu seems to have taken a “hands off approach” leaving the management of Mr. Wilson to Mr. Kelly. Chief Assu relied heavily on what Mr. Kelly told him about his dealings with Mr. Wilson. It is also clear that Mr. Kelly did not tell Chief Assu the entire story of the workplace problems between Mr. Kelly and Mr. Wilson. In particular when Chief Assu was questioned about Mr. Wilson’s letter to the WWK of November 28, 2016 (Exhibit A, Tab 38) which referred to a formal complaint about Mr. Kelly, Chief Assu stated that Mr. Kelly told him that the complaint was settled. As a result of Mr. Kelly’s advice, Chief Assu reported to council that it had been settled. Chief Assu testified as a result of Mr. Kelly telling him the matter was settled council did not hear from Mr. Wilson at a meeting about Mr. Wilson’s complaint about Mr. Kelly.

Facts

The Scope of Mr. Wilson’s Work

[29] Mr. Wilson commenced his employment with the WWK on April 1, 1983. He served first under Chief Donald Assu, followed by Chief Ralph Dick and he served briefly under Chief Brian Assu. Mr. Wilson was mentored extensively by Chief Donald Assu, who was also the band manager. Chief Donald Assu taught Mr. Wilson that it was important to “think outside the box.” As a result of this mentoring, Mr. Wilson worked for a period with Indian Affairs and development many contact in government and with met many people and organizations involved in Indigenous politics – such as the Native Brotherhood.

[30] As a governance officer it was Mr. Wilson’s job to develop WWK laws and policies and to assist the Chief and Council in policy and political issues. His job required him to deal with governments - community, regional, provincial and the federal government. His task was to initiate proposals and not simply to complete tasks assigned to him. Through the use of his skills and connections Mr. Wilson was able to bring many benefits to his WWK. During this period he was an exemplary employee.

[31] Prior to 2016, Mr. Wilson had been working on health, family relationships and larger self-government issues. One of those benefits was the development of a Health Centre. For example, a project relating to an agency for children and families was a significant project. For many years aboriginal peoples have been concerned with the intrusive level of government involvement in aboriginal families, for example in removing children from aboriginal homes.

[32] In his role, from time to time the Chief and council did not like the advice Mr. Wilson gave and were angry with him. He gave an example of advice he gave to Chief Dick and council not to accept the purchase for $1.00 of a B.C. Packers Fish Plant on Quadra Island. He was concerned about the liability for environmental clean-up costs. The WWK subsequently acquired the facility after B.C Packers spent $2 million on the clean-up costs.

Work Flexibility and Projects outside of Duties for the WWK

[33] During the course of his long work relationship with the employer, Mr. Wilson had considerable flexibility in his job. In particular, most of his work was conducted, when in Campbell River, from his home office. He also worked from various locations on the road using a lap top computer. During the course of his work for the WWK, Mr. Wilson has never worked from an office in the WWK’s office 9

building. For a brief period many years ago he was assigned an office in the WWK building and Mr. Kelly then occupied the office because Mr. Wilson was not using it.

[34] Mr. Wilson also had the flexibility to take on other work. Chief Donald Assu encouraged Mr. Wilson’s involvement in consulting activities, apart from his employment with the WWK. This included work through Mr. Wilson’s consulting company, J.D. Wilson & Associates Ltd., incorporated on July 7, 1989. For example, in the late 1980’s his company did statistical consulting work with the full knowledge of Chief Donald Assu. Mr. Wilson also engaged in the commercial fishery, while his salary was paid by the WWK. He chaired meetings for other organizations and was paid for this work. For example between 1995 and 2015 he chaired assemblies for a treaty society. His company provided governance services and strategic planning session for the North Island Aboriginal Training Society (NIATS). He worked with others to create the First Nations Health Authority.

[35] Mr. Wilson chaired the Kwakiutl District Tribal Council (KDC) from October 1, 2001 until June 2 of 2016. This was an elected position and he was paid an honorarium for his work and reimbursed him for expenses. Mr. Wilson worked with the KDC with the knowledge and consent of the WWK. He had an office in the KDC building. The KDC building was located across the parking lot from the WWK’s office, after the WWK’s office moved from Cape Mudge on Quadra Island to Campbell River. Mr. Wilson lost his elected position on June 2, 2016 and as a result no longer had an office in the KDC building.

[36] In cross-examination, Chief Assu agreed that Mr. Wilson was given a “relatively free reign to do outside work as long as it did not conflict with his duties for the Band.” Chief Assu admitted that the employer knew that Mr. Wilson had engaged in consulting work outside his employment with the WWK for many years

and never objected to it.

[37] Mr. Kelly became Mr. Wilson’s supervisor in 2001. Mr. Kelly did not have daily interaction with Mr. Wilson from 2001 until the end of 2015. In 2001 when Mr. Kelly started working for the WWK “he thought” Mr. Wilson was to be working regular hours like all the other employees at the Band office. Mr. Kelly’s belief is not evidence and he was simply wrong about Mr. Wilson’s work location and schedule when Mr. Kelly started work with the WWK. For many years, Mr. Wilson has not even had keys or the alarm codes to gain access to the WWK’s office.

[38] Mr. Wilson often started work at 4:30 to 5:00 a.m. He worked long hours.

No Policy on Moon Lighting or Outside Work

[39] Around 1998, the WWK introduced the Cape Mudge Band Employee Policy (“employee policy”). The policy is now referred to as the We Wai Kai Nation Employee Policy Manual (“employee policy”). (Exhibit B, Tab 64).

[40] Mr. Kelly stated that the employee policy was binding on all employees and the WWK. I accept that the policy is a statement of the employer’s intent in managing its employees. For the reasons expressed later in this decision it is my finding that Mr. Wilson is not bound by the vacation or sick leave provisions of the policy.

[41] This employee policy does not contain any express provisions which preclude an employee from moonlighting or engaging in work outside duties with the WWK (“outside work”) such as consulting contracts. The closest the policy comes to addressing this issue is a requirement in section 10 which provides for discipline for “failing to maintain ethical conduct.” One of the standards is:

7. to not engage in any activities outside of one’s employment duties if, by

so doing, one would be in violation of any of the above articles.

[42] In Section 10.0 ethical conduct is defined in general terms as:

1. to execute one’s duties in an honest, conscientious and loyal fashion 2. to display promptness, courtesy and temperance in the performance of one’s duties 3. to conduct oneself in public while on duty in a manner which will not bring discredit upon the Cape Mudge Band 4. not to engage in public criticism of his/her supervisor, fellow employees or the Band Council 5. to maintain standards of confidentiality in regards to the internal operations of the Band Council and its related organizations, committees or other bodies and to not use information for purposes of personal gain 6. to not use one’s position for purpose of profit or gain 7. to not engage in any activities outside of one’s employment duties if, by so doing, one would be in violation of any of the above articles.

Harassment Policy

[43] The WWK has a policy related to harassment in the workplace contained in its employee policy manual (Exhibit B, Tab 64, p 178 – 179). The policy covers conduct by employees and elected officials.

[44] The policy provides for the definitions of harassment and abuse of authority: . . . Harassment:

Any improper behavior by a person or persons employed by the WWKN, or by an elected official of the WWKN, that is either directed at or offensive to any employee and which the harasser knew or ought to have known would be unwelcome. It includes objectionable conduct, comment or display made on either a one-time or continuous basis that demeans, belittles, causes personal humiliation or embarrassment to an employee.

Abuse of Authority:

Abuse of authority means a person improperly using the power and/or 12

authority associated with a position held, in order to endanger an employee’s job, undermine the performance of that job, threaten the employee’s economic livelihood or in any way interfere with or influence the employee’s career goals. It also includes acts such as intimidation, threats, blackmail or coercion. . . .

[45] The policy provides that:

 a complainant has the right to select the authority to whom the complaint may be made, including Band Council (section 2.4(c));  the complaint must be investigated in an impartial, confidential and expeditious manner (section 2.3.4.7);  the complainant must be informed of the status and outcome of the complaint (section 2.4 (f) and (d));  the complainant has the right obtain a review of the complaint without fear of reprisal (section 2.4 (b).

[46] The policy does not restrict the authority of a manger to Instruct, counsel or discipline employees (section 2.3.4.5).

Developments in 2015 – 2016

[47] In November of 2015, the long-term chief, Ralph Dick, was impeached from office under the WWK’s Electoral Code. Mr. Wilson had served under Chief Dick’s tenure for many years. Chief Brian Assu was elected to office in late 2015. Chief Assu also had been involved with council for approximately 30 years.

[48] Before the end of 2015, Mr. Wilson met informally with Chief Assu. Chief Assu instructed Mr. Wilson to proceed with the preparation of four band council resolutions (BCRs) dealing with the formation of an aboriginal agency to provide services to children, electoral reform, a governance audit and an RCMP 13

Community Consultation Group. According to Mr. Wilson these proposals were to form the basis of his work plan in 2016. Mr. Wilson thought he had the support of Chief Assu.

[49] I note that these are high level activities, as opposed to more mundane issues such as drafting bylaws related to sewer and water, animal control and traffic.

[50] Council elections were held in January of 2016. While the same slate of previous councillors were elected, shortly after the election Mr. Wilson became aware of a number of councillors who wished to terminate his employment. His information likely came as a result of “leakage” from an in camera session of council. Apparently “leakage” from council meetings was common-place. Chief Assu confirmed that there were councillors that were not supportive of Mr. Wilson.

[51] In the later part of Mr. Kelly’s testimony, which emerged in cross-examination, rather than direct examination, it appears that a faction of counsel objected to Mr. Wilson performing the outside work he had been doing for the KDC for many years, with the knowledge of the WWK. Concerns about Mr. Wilson’s outside work appear to have arisen from the events resulting in the impeachment of former Chief Dick; however it is unclear specifically how it is linked. The full events about Chief Dick are not before me.

[52] Mr. Kelly said that in January of 2016, when the four BCRs were presented to the council, there were three councillors that would have fired Mr. Wilson right away – Mr. Ron Chickite, Mr. Ted Lewis and a third councillor whose name Mr. Kelly was not able to recall. In his testimony, Mr. Kelly attempted to downplay the importance of this incident, claiming that on any given day a faction of council would like to get rid of him. However, this is the type of conduct that fits squarely within the definitions of harassment and abuse of authority set out in the harassment portion of the employee policy.

[53] I find that this is particularly unfair since Mr. Wilson had discussed these BCRs with Chief Assu in late December. Mr. Wilson believed that Chief Assu supported these proposals. The other unfair aspect is that Mr. Kelly did not tell Mr. Wilson that his proposals had been rejected. Mr. Wilson was left in a state of limbo about the four BCRs.

[54] Further, as a matter of governance, Band Council manages one employee – Mr. Kelly. A Band Council is not involved in the day-to-day running of the WWK office; that is Mr. Kelly’s task. An individual councillor, simply by virtue of holding elected office, has no authority to direct or control a WWK employee. When a Band Council or councillor(s) steps into this territory to deal with a long-term productive employee, like Mr. Wilson, it does so at its peril. Councillors come and go as they are elected to office. As such it is unlikely that any individual councillor will have the institutional knowledge or memory about the terms and conditions of employment for a long term employee. As Mr. Wilson noted, some of the councillors would have been children when he started his work with the WWK.

[55] On April 11, 2016, Mr. Wilson met with Mr. Kelly. At this meeting Mr. Kelly did not advise Mr. Wilson that a portion of the council had wished to terminate him. Further, Mr. Kelly did not tell Mr. Wilson that it was his proposal that rather than terminate Mr. Wilson, the Band Council should follow a process and start with getting Mr. Wilson to work back in the WWK office between 8:00 and 4:00 p.m. It is my finding that Mr. Kelly did not deal with Mr. Wilson at this point in a good faith manner.

[56] In an email following this meeting Mr. Wilson accurately reported his version of what Mr. Kelly told him as follows:

. . .

You raised the issue that the Chief and Council wished to pass a Band

Council Resolution (BCR) requiring me to move into an office in the Band Office from 8am to 4pm every day. I must say I’m shocked to hear this recent development especially from you, as the person responsible for the overall functionality of the administration, have expressed that you do not feel that this move is necessary for the successful execution of my duties. I am now fearful of my job being terminated by Chief and Council based on a political decision. I wish to know what precipitated this. Thank you for reminding Council that they cannot dictate employees’ work or schedule since their only employee is you.

. . .

[57] According to Mr. Kelly’s testimony he had received instructions from the Band Council to get Mr. Wilson working in the office from 8:00 to 4:00 pm when council rejected the four BCRs proposed by Mr. Wilson. There is apparently no Band Council Resolution on this point and no evidence of this discussion in the minutes. I noted with some interest that at the hearing this information did not come through Chief Assu’s testimony. I infer that Chief Assu may not have been aware of these instructions which Mr. Kelly obtained from a faction of council to “get Mr. Wilson working in the Band office.”

[58] Mr. Kelly did not provide instructions to Mr. Wilson to report for work at the offices from 8:00 to 4:00 p.m. until November 14, 2016 when he gave Mr. Wilson a letter of expectations after he returned from vacation leave.

[59] Mr. Kelly claims that he believed that he drafted a work plan for Mr. Wilson following a February 16, 2016 meeting of council. He later stated he could not recall doing it. In fact he did not do this. I find that he did not set clear expectations for Mr. Wilson during a period when council was seeking to change the nature of Mr. Wilson’s work and when a faction of council wanted him dismissed.

No Connection to the Loss of Mr. Wilson’s KDC Elected Position.

[60] The discussions in council about requiring Mr. Wilson to work in the office 16

8:00 a.m. to 4:00 p.m. occurred sometime in January or February 2016.This was some four to five months before Mr. Wilson lost the KDC election and his office space there on June 2, 2016. The WWK’s attempt to portray the change in place and hours of work as related to Mr. Wilson’s loss of his office at the KDC is troubling as it does not accord with “. . .the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place or circumstance.”: Faryna.

[61] I find that the employer’s attempts to “reign in” Mr. Wilson were unconnected to his loss of office with KDC. I find that the attempts to reign in Mr. Wilson do not relate to Mr. Wilson’s job performance or his productivity. The attempt to reign in Mr. Wilson was simply the result of the view of some councillors, following the impeachment of Chief Dick and the election, that Mr. Wilson should not be engaging in outside consulting work while employed by the WWK. Further, this view that Mr. Wilson should not perform outside work is unsupported by the employee policy which the employer claims governs the relationship between the WWK and its employees.

[62] Further, I also find that it was Mr. Kelly’s view that Mr. Wilson should not be doing outside work as he was one of the highest paid employees for the WWK. Mr. Kelly further attempted to tie the work place flexibility issue to Mr. Wilson’s appointment to the KDC. This clearly was not the case. Mr. Wilson had flexibility before Mr. Kelly worked for the WWK.

[63] In April 2016, the WWK council was considering passing a resolution requiring Mr. Wilson to be at the office from 8:00 to 4:00. This is an extraordinary act – one that might be undertaken by a manager if there were significant concerns with the productivity of an employee.

[64] Mr. Wilson testified that the problems with his employer started in 2016,

when he submitted his work plan for 2016 which consisted of four band council resolutions on council’s agenda. Mr. Wilson testified that Mr. Kelly did not submit these to council. In my view that was an honestly held belief as Mr. Wilson prepared the Band Council Resolutions for submission at the request of Chief Assu. Mr. Wilson was excluded from the portion of the meeting where these items were to be discussed. Mr. Wilson was never informed they were rejected.

[65] This precipitated Mr. Wilson’s January 9, 2016 email to Mr. Kelly. As a result of not receiving a satisfactory answer, Mr. Wilson emailed Chief Brian Assu. Mr. Wilson thought it was odd that he did not get any feedback from council on these priorities. Chief Assu confirmed that he, and to his knowledge no one, conveyed to Mr. Wilson that council had rejected the four BCR’s.

[66] As 2016 progressed, Mr. Wilson noticed that his once close relationship with the council had changed. He no longer had the access to council that he was previously accustomed to. Prior to the removal of Chief Dick from office he had unfettered access to the chief and the council. He put forward items for the council agenda which were not discussed. He was not informed of the results of matters that he managed to get onto the agenda for Chief and Council meetings – particularly 4 Band Council Resolutions dealing with his work plan for 2016. In later emails he described this as a “disconnect” between himself and council. I accept this was so, however, there was no clear explanation in the evidence as to why this problem developed, other than it is clear that a faction of council wanted him gone.

Bylaws

[67] Mr. Wilson testified that the WWK had an old set out bylaws, which were essentially unenforceable. To enforce any breach of the bylaw, the WWK was required to commence an action in Federal Court. Mr. Wilson was hoping to implement a system, similar to municipal bylaws were ticketing would occur

through bylaw enforcement officers, and the enforcement could be delegated to the Municipality of Campbell River.

[68] Mr. Wilson attempted to have a discussion with council about by-laws. He indicated that three hours was required for that discussion. Although it is noted as an agenda item for the March 14 council meeting, there was no discussion of this matter and it was supposed to be deferred to March 21, 2016. It also appears that he may have met with council on March 21, 2016 to discuss bylaws and policy. The minutes (Exhibit A, Tab 19) are extremely sketchy so it is unclear exactly what was discussed.

[69] On March 21, 2016, the council repealed all the WWK’s bylaws by Band Council Resolution (Exhibit 2). There were no replacement bylaws ready. I find that work on replacement bylaws did not become a priority until the council repealed the bylaws on March 21, 2016.

[70] Mr. Kelly claimed that the reason why the four priorities proposed by Mr. Wilson in January of 2016 were rejected was because council thought that there was a list of bylaws that needed to be worked onand this was the priority. This cannot be correct, however as the minutes show that Mr. Wilson’s work plan – the four BCRs were rejected - (unknown to Mr. Wilson) at the February 15, 2016 council meeting (Exhibit A, Tab 16), more than a month before the repeal of the by-laws.

[71] No one testifying at the hearing was able to explain why the council repealed all its bylaws, without having replacement bylaws ready to implement. The council wanted Mr. Wilson to draft new by-laws – for example an animal control bylaw, sewer and traffic signage by-laws. These became work priorities for Mr. Wilson.

[72] By-laws are approved by the Department of Indian Affairs and in Mr.

Wilson’s view was a step in a different direction than the WWK had been taking since 1980, which was towards self-government.

[73] At a council meeting on April 4, 2016, Mr. Kelly was directed by the council to “take immediate action and provide a “letter of expectations” to the Governance Officer (JW) to begin review of the election code and community bylaws.” (Exhibit A, Tab 23, p. 37) This motion was made by Mr. Chickite, who was one of the councillors who expressed a desire to get rid of Mr. Wilson at a council meeting in January. He was also a councillor who later participated in Facebook postings about Mr. Wilson in November of 2016 which commented adversely on Mr. Wilson’s work performance and absence from work.

[74] At this time, Mr. Kelly said that some council members had concerns that Mr. Wilson was not taking direction, not performing assigned work and that his outside interests were more important than the work of the WWK. I find, however, that there was no objective basis for this concern. The situation rather was that the council was trying to eliminate Mr. Wilson’s flexibility to do outside work while he was a WWK employee.

[75] Although Mr. Kelly was directed by council to provide Mr. Wilson a letter of expectations following the April 4, 2016 council meeting, Mr. Kelly did not provide a letter of expectations to Mr. Wilson until November 14, 2016 (Exhibit A, Tab 39). He was unable to explain why he did not issue this letter until November. His only explanation in cross-examination, that “I was a shitty boss”, was also one from which he resiled later in cross-examination.

[76] In cross-examination, Chief Assu admitted that Mr. Wilson’s role with the WWK was being restructured. He stated that many councillors did not understand Mr. Wilson’s role with the WWK or the work he had done in the past for the WWK. Chief Assu admitted that the November 14 letter of expectations was the one that council directed Mr. Kelly provide at its April 4 meeting. Chief Assu could not

explain why Mr. Kelly did not provide it to Mr. Wilson until November 14.

[77] After a meeting with Mr. Kelly on April 11, 2016, Mr. Wilson concluded that his job was in jeopardy. On April 18, 2016, Mr. Wilson requested a copy of his personnel file. He requested this information because he felt that he had gone through a similar situation with the WWK in the past about working hours, sick leave and vacation issues and there would have been information about this in his personnel file. Further, it is clear by this point that Mr. Wilson believed his job was in jeopardy and he was seeking legal advice.

[78] In an undated April letter (Exhibit B, Tab 66, p. 186) Mr. Wilson asked . . .

Further you informed me that I was to stop all work on anything to do with the Ministry of Children and Family Development and other things. I was only to work on things that the Chief and Council direct like Band By-laws. I need to know exactly what the expectations of my position are so I can adhere to them. Therefor I am requesting in writing a comprehensive articulation of the changes and accountabilities of my position within 5 business days. . . .

[79] Mr. Kelly does not recall if he ever spoke to Chief Assu about this letter. Mr. Kelly responded with a letter on April 18 to the effect that he took Mr. Wilson’s complaints seriously and he would like to explore solutions and he would be in touch before April 29, 2016. Mr. Kelly never met with Mr. Wilson or responded further to Mr. Wilson on this issue. His next contact with Mr. Wilson was an email on July 11, 2016, to inquire about Mr. Wilson’s work with ITHA.

[80] Mr. Kelly said at this time, Mr. Wilson was expected to be in the office from 8:00 to 4:00 like everyone else and get to work. I note that this is about six weeks prior to Mr. Wilson losing the KDC election so it is clear that Mr. Kelly’s expectation is entirely unrelated to Mr. Wilson’s loss of the KDC election.

Failing to respond to communications

[81] In addition to failing to clearly communicate expectations I find that Mr. Kelly did not respond to communications from Mr. Wilson, when he was seeking direction or assistance from Mr. Kelly, which Mr. Wilson needed to perform work tasks.

[82] On March 29, 2016, Mr. Wilson wrote a memo to Mr. Kelly and to Chief Assu indicating that he wanted to meet to discuss governance practices. He also requested copies of certain policies. In particular he wanted to discuss the Election Code and get some direction on this. Mr. Kelly admitted in his examination in chief that he did not respond to this memo.

[83] Mr. Wilson was publicly criticized by a councillor – Mr. Chickite in a Facebook posting in November of 2016 for failing to action matters related to the Election Code. It is simply unfair and inaccurate to be posting information blaming Mr. Wilson when he was not to blame for the issue of revising the Election Code.

Work on Bylaws

[84] Mr. Wilson sent a draft of the traffic by-law to Mr. Kelly on April 14, 2016.

[85] Mr. Kelly instructed Mr. Wilson that work on the water and sewer by-law was a priority (May 13, 2016 email, Exhibit C, Tab 53, p. 106). Before the City of Campbell River would work with Mr. Wilson on water and sewer by-laws it required an introductory meeting with Mr. Kelly. They would not meet with Mr. Wilson without first an introductory meeting with Mr. Kelly. Mr. Wilson asked Mr. Kelly to arrange this and there was no action taken by Mr. Kelly. This had the effect of frustrating work Mr. Wilson could do on these by-laws.

[86] Mr. Wilson had provided a draft animal control bylaw to Mr. Kelly by email on July 5, 2016 and had requested feedback from Mr. Kelly. By December 1, 2016, Mr. Kelly had not provided feedback. (Exhibit A, Tab 45, p. 84) Mr. Kelly unaccountably failed to acknowledge receipt of the email or account for his failure to provide feedback.

First Nations Financial Management Board

[87] Mr. Wilson was required to do some work to ensure that the WWK could access funds from First Nations Financial Management Board (FNFMB). Mr. Wilson asked Mr. Kelly to provide documents which he had on a thumb drive, – which were precedents that he needed to create documents to meet the FNFMB’s requirements. According to Chief Assu, he had given the thumb drive to Mr. Kelly. Mr. Wilson followed up by email on May 13, 2016 (Exhibit C, Tab 53, p. 106). Mr. Kelly neglected to provide the information.

[88] On or about June 13, 2016, Mr. Kelly met with Mr. Wilson and chastised him for attending a meeting with Chief Assu in Vancouver about implementing policy changes to ensure funding from the FNFMB. These policies had not been yet implemented and they needed to be implemented. He stated that Mr. Kelly was angry about him attending the meeting without his knowledge or permission. Mr. Kelly said to Mr. Wilson: “I thought we were done with this shit when Chief Ralph Dick was removed. I can’t have Chief and Council going to meetings without my knowledge.” I accept Mr. Wilson’s testimony that Mr. Wilson was not required and never had required Mr. Kelly’s permission to attend meetings, when his attendance was requested by the Chief.

Harassment Complaints Incident with Pam Lewis

[89] Mr. Wilson first raised the issue of harassment on March 22, 2016, concerning Ms. Pam Lewis, another employee. Mr. Wilson asked Mr. Kelly to direct Ms. Lewis to provide information he needed for a work project. Mr. Kelly did not advise Mr. Wilson that he had spoken to Ms. Lewis, or the contents of that communication.

[90] The direction given by Mr. Kelly to the employee was to give Mr. Wilson the information if he asks for it again. In Mr. Kelly’s examination-in-chief when he was asked whether he told Mr. Wilson, he said “I can’t recall if spoke to him. I don’t have any obligation as band administrator. I don’t report to him, I dealt with the complaint and that was it.” No information was provided to Mr. Wilson by either Ms. Lewis or Mr. Kelly.

[91] In my view this is very odd behaviour for a manager. Mr. Kelly knew from his dealings with Ms. Lewis that she would follow his instructions to the letter. This means that Mr. Kelly knew when he gave that instruction to Ms. Lewis that she would only provide the information if Mr. Wilson asked again.

[92] Failing to provide someone with information needed to perform their job is an abuse of authority under the WWK’s harassment policy. Further, Mr. Kelly had a duty under the harassment policy to investigate this and to report back to Mr. Wilson. His failure to do so had the effect of undermining Mr. Wilson’s ability to perform his work and it contributed to Mr. Wilson’s growing distrust of Mr. Kelly.

[93] In April of 2018, Mr. Wilson raised harassment complaints in connection with what he perceived to be an abuse of authority by the faction of council that were seeking to reign in his activities.

[94] On July 18, Mr. Wilson wrote to Mr. Kelly to obtain copies of his personnel file, the employment policy and to file a complaint. I find on the evidence before me that Mr. Kelly provided cursory information to Mr. Wilson in September of 2016. Mr. Kelly provided more fulsome information when later demanded through Mr. Wilson’s legal counsel. I find that Mr. Kelly knew that he did not provide complete information. This was not simply a mistake or inadvertence on his part. He chose to provide materials that were in Campbell River. He did not review or obtain file materials that he knew were stored on Quadra Island. With effort he could have located and provided the information sought by Mr. Wilson.

[95] Some of the documents that Mr. Kelly failed to produce bore directly on issues in this hearing, including the workplace flexibility about the hours and location of work and the applicability of the employee policy on sick leave to Mr. Wilson. This was all information that would have been helpful for Chief Assu and the council to review if they had chosen to meet with Mr. Wilson about his harassment complaints. It may have provided council members with the needed “institutional memory” in order for council to comprehend the fundamental changes they wanted to make in Mr. Wilson’s job.

[96] Chief Assu relied on what Mr. Kelly told him about Mr. Wilson. Further, I find that Mr. Kelly misled Chief Assu in September concerning whether Mr. Kelly had resolved workplace issues raised by Mr. Wilson. I find that Chief Assu honestly believed that these issues were resolved, when in fact they were largely ignored by Mr. Kelly.

[97] As a result of Mr. Kelly’s misrepresentations to Chief Assu, Mr. Wilson lost an opportunity to discuss his workplace issues and harassment complaints with council on September 8, 2016. I note that shortly after this Mr. Wilson sought medical advice from Dr. Carswell concerning workplace stress and essentially never worked again for the WWK.

[98] Mr. Wilson attempted further to get onto the agenda for the September 26 council meeting to discuss his harassment complaints. He was not provided an opportunity to meet with council. I note that Chief Assu testified that it was council that set the agenda for meetings and he had no unilateral right as Chief to insist on particular matters being placed on the agenda. It appears that by September Chief Brian Assu was not returning Mr. Wilson’s calls or emails.

[99] By November 14, 2016, Mr. Wilson concluded that the WWK intended to fire him. When Mr. Wilson returned to work on November 14, Mr. Kelly provided him with a direction to maintain regular office hours 8:00 am to 4:00 pm at the main WWK office (Exhibit C, Tab 62, p 127). The letter refers to providing office keys and alarm codes, however, Mr. Kelly did not provide these to Mr. Wilson. This was the letter of direction that Mr. Kelly was supposed to provide to Mr. Wilson in April of 2016. After receiving the letter of direction Mr. Wilson left the office.

[100] On November 14, 2016, Mr. Wilson wrote to Mr. Kelly providing a medical note that he was unable to work and would be reassessed on November 28. Mr. Wilson also noted that the direction that he attend at the WWK office for scheduled work hours was a material change in circumstances requiring appropriate notice – he suggested two years would be reasonable.

[101] On November 14, 2016, Mr. Wilson also wrote to Chief and Council (Exhibit C, Tab 61, p. 126) pointing out that he believed Mr. Kelly’s actions were bullying and harassment and amounted to a constructive dismissal. He requested a meeting with Chief and council. His request was ignored.

[102] Following the receipt of Mr. Wilson’s November 14 letter about constructive dismissal Mr. Kelly contacted Labour Canada for advice. The advice that Mr. Kelly received was that the employer’s requirement for Mr. Wilson to work at the office from 8:00 to 4:00 was not a material change in circumstances. I note, however, that Mr. Kelly did not fully disclose the facts about Mr. Wilson’s working relationship

with the WWK. In particular did not disclose the fact that Mr. Wilson had had about 34 years of flexibility in his employment relationship and had not previously worked scheduled hours from the office or that he had the flexibility to take on outside work and that the WWK had no policy about outside work.

[103] On November 25, 2016, Mr. Kelly wrote to Mr. Wilson asking him to review the letter of employment expectations provided on November 14, prior to his return to work on November 28. Mr. Kelly also provided Mr. Wilson with the advice he received from Labour Canada. Mr. Kelly also referred to taking time off for medical issues in the following way: . . .

I would also like to bring to your attention the fact that taking time off for a “medical concern” requires that you do what is necessary to recover from your illness. It was reported to me that you continued to work for the Inter Tribal Health Authority during the period covered by your medical leave. I will continue to investigate this allegation ......

[104] Mr. Wilson also responded by letter to Mr. Kelly and took exception, in strong language, to Mr. Kelly’s information to Labour Canada. While Mr. Wilson used strong language, he was essentially correct that Mr. Kelly had not provided full and complete information to Labour Canada.

[105] On November 29, 2016, Mr. Wilson had a discussion with Councillor Ted Lewis after a community meeting. (Exhibit C, Tab 64). Mr. Lewis informed Mr. Wilson that he had to report to work as directed by council. He told Mr. Wilson to “listen to council and come to work at the office.”

[106] In my view, under the harassment policy, it is an abuse of authority for a councillor or a number of councillors to engage in actions which jeopardize an employee’s livelihood – it is a form of abuse of authority.

Sick Leave

[107] Mr. Wilson testified that at the time of his hiring by the WWK he accumulated sick time of 1.5 days for every month that he worked. Documents from the 1998 period show that Mr. Wilson had an entitlement to 1.5 sick days per month with the right to accumulate sick leave (Exhibit D, Tab 15, p 740). He argues he worked under original terms and conditions of employment similar to the federal public sector.

[108] The employee policy first introduced in 1998 provides employees are entitled to sick leave at the rate of 1.25 days per month of employment and accumulated for no more than six months. The WWK says that this policy applies to Mr. Wilson’s employment.

[109] Mr. Wilson commenced his employment well before the WWK first introduced the employee policy in 1998. The policy purports to change sick leave and vacation entitlements previously enjoyed by Mr. Wilson. There was clearly no consideration for this policy in its application to Mr. Wilson.

[110] On or about July 10, 1998, Mr. Wilson’s employment with the WWK was terminated. He explained that he was terminated from his position with the WWK for refusing to sign on or accept a policy which limited his vacation time to three weeks per year and limit his sick leave entitlement. He was subsequently and quickly reinstated to his position. He was not required to sign or accept the policy as a term of his reinstatement. Mr. Wilson’s testimony on this point was not challenged in cross-examination.

[111] Mr. Wilson also testified that his original terms and conditions of hiring gave him six weeks of holiday time per year, which could be accrued. The employer has accepted that he has this enhanced vacation time over and above

the policy.

[112] I prefer Mr. Wilson’s testimony over the testimony of Mr. Kelly concerning the terms and conditions of his sick leave. The basic events governing these terms and conditions predate Mr. Kelly’s term as manager.

[113] The employer approached the issue of Mr. Wilson’s continuing sick leave, in part based on the mistaken premise that Mr. Wilson’s sick leave had been fully used up when counsel for the WWK was corresponding with Mr. Wilson’s council in late 2016 and early 2017 about Mr. Wilson exhausting his sick leave. This was premised on their position in the policy that the sick leave could only be accumulated for six months according to the policy. I find that this policy did not apply to Mr. Wilson. He had a large accumulated sick bank at the time of his termination from employment. His sick leave was far from being exhausted at this time.

[114] Mr. Wilson kept track of the sick days he accrued from year to year. From 2001 to his termination this amount to 1885.835 hours. He did not keep track of his use of sick leave. The maximum entitlement is a reliable number which can be arrived at arithmetically on the basis of 1.5 sick days per month or 18 per year.

[115] In the ordinary course of business, the employer tracks the sick leave use by all its employees. It tracked Mr. Wilson’s use of sick leave from 1998 until January 15, 2017, the last day he was paid (Exhibit A, Tab 1 and Exhibit D, Tab 26, p. 278). He used 44 hours of sick leave – both certified and uncertified from March 1998 to March 16, 2016. From April 2016 to January 20, 2017 he used 96 hours of certified and uncertified sick leave. He also accrued sick leave during this period.

[116] Doing the best that I can with the numbers provided, his entitlement to sick leave is 1885.835 hours minus 140 hours used or 1745.835 hours.

[117] I find that Mr. Wilson had a substantial sick leave bank at the time he was 29

terminated by the WWK. For the reasons set out later in this decision he is not entitled to compensation for his unused sick leave bank.

Vacation Leave

[118] Mr. Wilson was entitled to 30 days of vacation per year, more than other employees are entitled to under the employee policy. This is conceded by the employer.

[119] Mr. Wilson claims an entitlement to 271 days of vacation, accumulated at a rate of six weeks per year since 2001. This would be 54.2 weeks. This may well be the time he accrued but it appears that this may not take into account all the vacation time he used.

[120] The employer recorded his vacation leave balance at 768.062 hours as of July 8, 2016. As of January 20, 2017, he had a vacation balance of 2.979 hours. Mr. Wilson admitted to the accuracy of the time noted for vacation time taken.

[121] As noted later in this decision the employer’s calculations are incorrect because it counted some sick days used by Mr. Wilson as vacation time, when these days should have been allocated against the sick leave bank.

Inter Tribal Health Authority (ITHA)

[122] The ITHA is an organization that was created by Mr. Wilson during his work with the KDC. The ITHA facilitates health promotion and the transfer of federal resources to its various Indian Band members on Vancouver Island.

[123] Mr. Wilson entered into a professional services agreement with the ITHA, as its governance officer, on or about June 10, 2016. That contract called for work

of a minimum of three days per week and a maximum of five days per week, for the period of June 10, 2016 to June 9, 2017. Although the ITHA offices are situate in Nanaimo, there is no requirement in the professional services contract that Mr. Wilson perform the services during regular business hours, or at the Nanaimo office.

[124] Mr. Wilson was on vacation leave from the WWK from July 8 to November 14, 2016. The documents show that Mr. Wilson also worked for ITHA before he left for his vacation - 12 days in June and was paid $4,550 (paid for 13 days) and in July. During his vacation from his WWK position he worked for ITHA.

[125] After entering into the professional services agreement Mr. Wilson did not fully disclose the details of his relationship with ITHA to the WWK during the balance of his employment with the WWK. In cross-examination, Mr. Wilson conceded that he had not provided the WWK with a copy of his professional services agreement with ITHA. He also advised that he had never provided the WWK with his contracts for outside work during the course of his employment relationship.

[126] On July 11, 2016 Mr. Kelly attempted to address with Mr. Wilson his work with ITHA. Mr. Wilson was on holidays from the WWK at this time. Mr. Kelly commenced the conversation with telling Mr. Wilson that there was a rumour he was working for ITHA. Mr. Wilson asked Mr. Kelly for the source of the information. When Mr. Kelly refused to tell Mr. Wilson the source of his information, Mr. Wilson left the meeting. Mr. Kelly did not discipline Mr. Wilson or ask him for further information about his role with ITHA.

[127] On July 18, 2016, Mr. Wilson provided Chief Assu with an envelope that contained a pay-stub from his consulting work with the ITHA. It appears that Chief Assu did not open this for some time. I note that a pay stub does not constitute providing full details, but it did put the WWK on notice that Mr. Wilson was

performing some work for ITHA.

[128] Mr. Kelly attended a council meeting on August 11, 2016. At this meeting a councillor raised a concern about Mr. Wilson’s work for ITHA. Mr. Kelly claimed he could not recall the name of the councillor. Mr.Kelly claims that he advised the council that when Mr. Wilson was on holidays he could work where he wished.

[129] On April 1, 2017, Mr. Wilson secured full-time employment with ITHA as the Associate Director at a rate of $49 per hour for a 35 hour work week ($1715 per week).

Training as a Drug and Alcohol Counsellor

[130] In September of 2016 Mr. Wilson started a drug and alcohol counsellor course, which he completed in April of 2018, through Mount Royal College in Calgary. This was an on-line course with weekly assignments. He took the course because he thought it would be helpful to him in his work with ITHA and he also wanted to diversify his skills.

Medical Condition and Medical Information provided and requested

[131] In correspondence with Mr. Kelly (undated but in April of 2016) Mr. Wilson stated that “I am stressed out at the thought that Chief and Council are acting in in a manner that is punitive and tantamount to a personal attack. They seem to be implying that my job is not being done and that they wish to alter or end my job as it is now. “(Exhibit B, Tab 66, p. 188)

[132] Mr. Wilson subsequently developed anxiety and depression. On September 8, 2016, he sought medical advice from Dr. Carswell, his family doctor. Mr. Wilson complained to Dr. Carswell that the council was angry with him, that he felt he was 32

being set up to be fired and that he had to take time off due to his mental health and a toxic office environment. Dr. Carswell accepted the information provided by Mr. Wilson, he conducted some screening tests and Dr. Carswell referred him for counselling.

[133] Mr. Wilson sought mental health counselling on September 23, 2016 through the Vancouver Island health Authority. Mr. Wilson was not comfortable with the counsellor he saw and eventually was able to make contact with Mr. Taylor, after he was terminated from his WWK position.

[134] Mr. Taylor was qualified to give expert evidence in the area of counselling and psychotherapy. He has a master’s degree from Pacifica Institute in Santa Barbara, California and other post graduate training. Mr. Taylor testified that his provisional or working diagnosis at the time that he initially met him that Mr. Wilson was suffering from major depression with symptoms of anxiety and an adjustment disorder. He revised this to an adjustment disorder with anxiety and depression.

[135] Mr. Taylor described that an adjustment disorder was a difficulty that Mr. Wilson had in adjusting to a perceived inappropriate situation at work with the WWK. Mr. Taylor noted that complicating factors were that Mr. Wilson was living in the community, working in the community, wanting to see the community succeed and was having difficulties reconciling how he was treated by the WWK with the long-term service he had provided.

[136] In cross-examination, Mr. Taylor admitted that his task as a counsellor is to accept the facts presented by the patient and work within that factual framework to assist. A psychotherapist or counsellor would not challenge those underlying facts.

[137] Mr. Wilson submitted the following medical notes about his health either directly to the employer or through his counsel to the employer:

 November 14, 2016 from Dr. Ryan Heriot (a locum): “James as assessed in the office today. Please allow him two weeks off of work due to a medical concern” (Exhibit A, Tab 37, p. 58)

 December 1, 2016 from Dr. Carswell: “Please excuse James from work now until December 19 inclusive.” (Exhibit A, Tab 47, p. 97)

 January 12, 2017 from Dr. Carswell: “Jim Wilson is medically unfit to work due to a medical condition which is presently being treated.” – provided about January 18, 2017 by Mr. Wilson’s counsel at the time (Exhibit A, Tab 54, p. 111)

[138] On December 2, 2016, the WWK through its counsel asked that “Mr. Wilson provide a detailed letter with respect to an alleged medical condition.” (Exhibit A, Tab 49, p. 98)

[139] On February 2, 2017, the WWK through its counsel notified Mr. Wilson’s counsel that that note provided by Dr. Carswell did not provide sufficient information to allow the WWK to assess his eligibility for extended sick leave. In the letter the WWK required Mr. Wilson to provide information from his doctor on or before February 9, 2017 “relating to his abilities and restrictions, the nature of his illness, the anticipated length of his illness and the prognosis (the “Medical Information.”) The letter stated “Should Mr. Wilson fail to provide the requested information by February 9, 2017, the Nation will treat such failure as resignation of Mr. Wilson’s employment.”

[140] The WWK terminated Mr. Wilson’s employment on February 10, 2017, when he did not respond to the request as of February 9, 2017.

Progressive Discipline

[141] The WWK has a policy about progressive discipline (Exhibit B, tab 64, p. 176). The policy provides for verbal reprimands, written reprimands (2), suspension without pay for up to two weeks, with dismissal on a 5th reprimand. Mr. 34

Wilson received no reprimands about his work place performance.

Harassment

[142] One of the significant problems in this case was that the WWK failed to address Mr. Wilson’s concerns about harassment and bullying in the workplace. Some of these complaints were about Mr. Kelly, as well as employees and councillors.

[143] Rather than investigating, Mr. Kelly simply ignored the complaints. Chief Assu confirmed that no investigation of the complaints occurred and no investigator was appointed. I note that Mr. Kelly went as far as to threaten Mr. Wilson that he could be terminated for unfounded allegations.

[144] This situation further escalated in the fall of 2016 when the employer attempted to impose fundamental changes on Mr. Wilson.

[145] The WWK has a policy related to harassment in the workplace contained in its employee policy manual (Exhibit B, Tab 64, p 178 – 179). The policy covers conduct by employees and elected officials. The policy provides for the definitions of harassment and abuse of authority:

. . . Harassment:

Abuse of Authority:

Abuse of authority means a person improperly using the power and/or authority associated with a position held, in order to endanger an employee’s job, undermine the performance of that job, threaten the employee’s economic livelihood or in any way interfere with or influence the employee’s career goals. It also includes acts such as intimidation, threats, blackmail or coercion. . . .

[146] The actions of Ms. Pam Lewis in withholding information Mr. Wilson needed to perform his job and the failure of Mr. Kelly to deal with her and inform Mr. Wilson of his results is conduct which is capable of supporting a finding of “abuse of authority” under the harassment policy. It is action which undermines the ability of Mr. Wilson to perform his job.

[147] After Mr. Wilson raised his concerns about making a harassment complaint against Mr. Kelly, requesting a copy of his personnel file and the employee policy, Chief Assu had promised a meeting between Mr. Wilson and council where he could address his concerns. At Chief Assu’s request Mr. Wilson agreed to defer this meeting to September following the end of the salmon fishing season. The meeting never occurred, because Mr. Kelly incorrectly advised Chief Assu that all the issues with Mr. Wilson had been dealt with.

[148] A manger against whom a complaint is made should not be the one to investigate a harassment complaint. By letter dated February 2, 2017, counsel for the WWK provided its view that Mr. Wilson’s allegations were without merit (Exhibit A, Tab 60, p. 127), however, it is also clear that no investigation took place.

[149] There is a basis for critical comments that Mr. Wilson made concerning Mr. Kelly and the WWK failing to investigate his complaints.

[150] On January 13, 2017, Mr. Wilson filed a harassment complaint against Councillor Ron Chickite, Council of Elders Representative Mark Lewis and Michelle Billy a WWK employee arising from Facebook postings in November of 2016, which discussed Mr. Wilson’s absence from work and work performance. Mr. Wilson asked that an independent investigator be appointed as Mr. Kelly was in a conflict of interest. There is no evidence that the WWK appointed an investigator or conducted an investigation.

[151] Mr. Wilson had developed a draft social media policy (Exhibit D, Tab 30, p 335). This policy applied to council members, members of the Council of Elders and employees. The harassment policy is broad enough to capture bullying and harassment by the use of social media, without the need for a finalized social media policy.

[152] Comments by a councillor and by an elected member of the Council of Elders that Mr. Wilson should be removed from his position are capable of falling within the definition of harassment as an abuse of authority. Public comments by staff members, council members or Council of Elder Members about Mr. Wilson or his job performance also fall within the definition of harassment. These are comments that endanger an employee’s job, undermine performance and threaten the employee’s livelihood.

[153] In summary, Mr. Wilson made harassment complaints. These allegations appear to fall within the definition of harassment under the policy. Under section 2.3.4.8 of the harassment policy, an employee has the right to have his complaint investigated in an impartial, confidential and expeditious manner (see Exhibit B, Tab 64, p. 179). The WWK clearly breached this policy. I find that Mr. Wilson has established that the employer failed to investigate his complaint or inform him about the results of an investigation, breaching its own harassment policy.

Analysis

Resignation, Abandonment or Dismissal

[154] I need to determine the basis for the end of the employment relationship as the parties do not agree. I have dealt with the various theories advanced by the employer below.

Resignation

[155] The employer has attempted to present the facts, in part, as Mr. Wilson resigning from employment. As a matter of law, it is clear that resignation is a right that is personal to the employee. It cannot be coerced by an employer. There has to be an intent to resign as well as concrete steps taken in furtherance of that intent. The employer says that by not accepting any of its three reasonable options presented in its letter of February 2, 2017– returning to work, providing more medical information or applying for short or long term disability - Mr. Wilson is taken to having resigned.

[156] On the whole of the evidence it is clear that Mr. Wilson had no intent to resign. This was clearly communicated by Mr. Wilson’s counsel to the employer’s counsel. Mr. Wilson made some attempts to return to work in November of 2016. The fact that Mr. Wilson did not accept any of the employer’s options, therefore, cannot be taken as evidence in support of a resignation. I find that Mr. Wilson has not resigned his employment.

Abandonment

[157] In certain cases an adjudicator might infer abandonment from the fact that an employee ceases to attend at work for one employer and has taken fresh employment with another employer. In my view that is not the case here. Mr. Wilson took on a consulting contract with ITHA. Mr. Wilson has a history of balancing multiple commitments, including outside contracts, with his work as a governance officer with the WWK. He did not intend to leave his job with the WWK. I find that he did not abandon his job with the WWK by taking the consulting contract with ITHA.

Constructive Dismissal and Actual Dismissal

[158] In cross-examination, Chief Assu testified that Mr. Wilson was terminated because he did not return to work, because of his work with ITHA and because of taking medical leave.

[159] The combination of events – changing the work environment without reasonable notice, frustrating the work being done by Mr. Wilson by not providing information, not addressing Mr. Wilson’s requests for information or addressing harassment complaints resulted in a hostile work environment.

[160] On the basis of the evidence, I have no hesitation in concluding that Mr. Wilson’s work environment was a difficult one. It was a poisonous environment where Mr. Wilson feared for his continued employment as a result of comments made by councillors and the lack of support or frustration of his work by Mr. Kelly. This would be a difficult environment for anybody to work in and particularly so for Mr. Wilson who was a dedicated, long-term employee who had worked very hard to improve things for the WWK’s members.

[161] In my view the proper characterization of the end of the working relationship was that the employer constructively dismissed Mr. Wilson when it attempted to force the issue of defined hours of work at a defined workplace. This was a material change in his conditions of employment. Further, Mr. Wilson worked in a poisonous work environment until he left for his vacation and sick leave. The right to work in a harassment free environ is a fundamental part of the employment relationship. The employer failed to investigate the complaints which made the problems for Mr. Wilson worse.

[162] After Mr. Kelly’s direction to report in November of 2016, Mr. Wilson performed no actual work and eventually the employer carried through with an actual termination of his employment. The employer extended the deadline to report to work until February.

Did the employer have some cause to discipline Mr. Wilson?

[163] I have concluded that the WWK had some cause to discipline Mr. Wilson because he failed to disclose the full details of his work with ITHA and because he did not provide sufficient details of his medical issues, in light of the problem that he was working with ITHA while claiming that he could not work for the WWK.

[164] For the reasons that follow, I find that Mr. Wilson did not engage in insubordinate or insolent conduct and he did not falsely accuse Mr. Kelly of harassment.

Insubordination

[165] An employer has the right to manage its workforce. These rights, however, are not absolute rights. Ordinarily a refusal to work as directed by an employer

would amount to insubordinate conduct. The employer points to directions given to Mr. Wilson on November 14, 28, 2016, January 18, 19 and February 9, 2017 to attend at the office. There were various deadlines which were extended.

[166] The employer states that the failure to report to work as directed can constitute grounds for dismissal: Halfacre v. Deputy Head (Department of Agriculture and Agrifood), 2014 FC 360; Riche v. Treasury Board (Department of National Defence) 2013 PSLRB 35; Stein v. British Columbia (Housing Management Commission) (1982), 65 B.C.L.R (2d) 181 and Eichenberger v. Health Consultants Limited, 1997 CanLii 2614 (BCSC).

[167] Insubordinate conduct strikes at the heart of the employment relationship and is usually grounds for termination of employment, even within the more nuanced approach of McKinley v. B.C. Tel., [2001] 2 SCR 161.

[168] It is important to recall the context, however. I find that the employer’s decision to require Mr. Wilson to work in the office Monday to Friday 8:00 a.m. to 4:00 p.m. was a material change in the employment relationship. This matter came to a head in November when Mr. Kelly first forced the issue. It was not accepted by Mr. Wilson. This had been successfully resisted by Mr. Wilson in his dealings with a former manager, Mr. Laurence Lewis during 1998. Further, the employer again attempted this in 2001 and permitted Mr. Wilson continued flexibility. In essence, the employer condoned or accepted a flexible work environment for Mr. Wilson for many years.

[169] From Mr. Wilson’s perspective the flexibility was an important part of his employment, as it also provided him with the flexibility to take on other projects. He had this flexibility for some 34 years. In my view, this flexibility was a fundamental aspect of Mr. Wilson’s employment relationship with the WWK. Further the WWK has not demonstrated that Mr. Wilson was not performing his job duties as a governance officer for it. He was never warned or disciplined during the course of 41

34 years of work. He was unjustly terminated and in 1998 because he refused to accept the terms of a newly introduced employee policy which attempted to reduce his holiday and sick leave entitlements.

[170] Mr. Wilson is not working in a unionized environment. It was not possible for him to “work now and grieve later.” While the employee policy has a grievance process for terminations it does not have a process to resolve other grievances.

[171] Mr. Wilson resisted changes in his employment which he considered fundamental to his working conditions. He asked for information, filed complaints and asked for meetings with council which were ignored. He did not want to quit his job, nor did he want to accept a fundamental change in his employment. By resisting the employer’s attempt to confine him to working in the office during office hours, Mr. Wilson took a risk that an adjudicator might disagree with his characterization of the importance of flexibility in hours and place of work.

[172] It is not insubordinate, however, for an employee to decline to accept material changes in an employment contract introduced by an employer. Typically at common-law, the employer dismisses the employee who refuses to accept the changes and the employee is limited to the remedy of damages. The Code protects employees from unjust dismissal and reinstatement is the usual remedy.

[173] The employer based Mr. Wilson’s termination, in part, on his failure to attend the WWK’s office and work from 8:00 am to 4:00 p.m.. The WWK sought immediate compliance with this directive in November. The WWK gave no reasonable notice of its intent to change a material part of Mr. Wilson’s working conditions given a 34 year history of flexibility in the place and hours of Mr. Wilson’s work.

[174] In terms of the test for insubordination the burden is on the employer to demonstrate that it made a reasonable direction which was deliberately refused by

an employee. An immediate direction about a change in work location and hours of work was not a reasonable work place direction in light of the 34 years of prior flexibility about the hours and location of work. In my view, in those circumstances Mr. Wilson’s refusal to accept an immediate change is not insubordinate conduct.

[175] I note further that a constructive dismissal finding is also warranted based on the hostile, intolerable or poisoned work environment, created or maintained by the employer over a period of months from early January through to the termination date: Kennedy v. Carry the Kettle First Nation, 2011 CarswellNat 4595 (Gardner).

Public Criticism of the Employer

[176] Public criticism of an employer can be grounds to discipline or terminate an employee, as it can be viewed as insolent behavior, incompatible with the continuation of an employment relationship.

[177] Strong language was used by Mr. Wilson in some of his written communications. I note, however, that the audience was generally limited to the persons to whom he wrote his letter. It was not published to the community. The employer had never in the past disciplined Mr. Wilson for the tone of his communication.

[178] In my view his correspondence in attempting to redress problems he perceived with his workplace treatment cannot properly be characterized as insolent behavior. If it was, there was a long history of this in the workplace, which was condoned by the employer.

[179] Further there is a truthful basis for Mr. Wilson’s comments as Mr. Kelly and the WWK did nothing to address Mr. Wilson’s concerns about workplace harassment. Mr. Kelly even threatened discipline for false harassment complaints. 43

The WWK also treated him in a very poor manner by failing to treat him in a transparent manner.

Working for ITHA

[180] An employee owes a duty of good faith and fidelity to his employer and misconduct can be exacerbated when the employee is a senior position within the employer’s organization who has autonomy: Rowe v. British Columbia Ferry Services Ltd., 2015 BCCA 1; Lewis v. M3 Steel (Kamloops) Ltd., 2006 BCSC 681 at para. 25. Durand v. Quaker Oats of Canada Ltd. (1990), 45 B.C.L.R. (2d) 354 (C.A.); Jewitt v. Prism Resources Ltd. (1980), 110 D.L.R. (3d) 713 (S.C.), affirmed (1981), 127 D.L.R. (3d) 190 (B.C.C.A.); and Steel v. Coast Capital Savings Credit Union, 2015 BCCA 127.

[181] An employer has a reasonable expectation of receiving value from the employee, in exchange for payment of wages. Mr. Wilson does not have a disciplinary history for workplace performance issues. On the basis of the materials before me, I am satisfied that Mr. Wilson was a valuable employee. The employer has not proven that Mr. Wilson’s performance was sub-standard or that he produced less volume of work than an employee situate at the employer’s office between 8:00 a.m. and 4:00 p.m. I am not satisfied on the basis of the evidence that the WWK has proven any problems with Mr. Wilson’s work place productivity or any problem with Mr. Wilson neglecting duties assigned by the employer.

[182] One measure of receiving value is attendance at the employer’s place of business. In some workplaces employees are required to “punch in and punch out.” It appears that most of the WWK employees worked at the WWK’s office. In a “punch in and punch out environment” the failure to attend work may be grounds for dismissal or termination.

[183] Mr. Wilson’s position was uniquely different from other workers at the WWK office and the employer acquiesced in his work outside of the WWK office setting for many years. I do not accept Mr. Kelly’s evidence that this related to and ended with Mr. Wilson’s KDC role. For many years prior to Mr. Kelly’s employment Mr. Wilson had this workplace flexibility. Further the employer knew that Mr. Wilson engaged in work outside of his work commitments with the WWK.

[184] However, in my view Mr. Wilson’s contract for services with ITHA was a substantial time commitment – 3 to 5 days. It is entirely possible to fulfil a commitment of that sort by working weekends, mornings before 8:00 am and after 4:00 p.m. On the information before me Mr. Wilson usually worked early in the morning - often from 4:30 to 5:00 am and in the evening; he worked long hours and long weeks.

[185] I accept that Mr. Wilson was a hard working individual and with flexibility he had the ability to work both for ITHA and for the WWK. His commitment with the ITHA did not require him to work regular business hours or at the ITHA offices in Nanaimo. Further, he was able to demonstrate that over a number of years he balanced consulting work with his employment with the WWK, without any complaint or conflict. It is instructive that the WWK never disciplined him in the past for productivity issues or outside consulting commitments.

[186] The time requirement for ITHA under his professional services contract, however, was a substantial commitment. It had the potential to conflict with his work for the WWK. While he had the flexibility to do outside contract work, the work for ITHA was a substantial commitment and he should have disclosed to the WWK, in a very clear way, his relationship with ITHA. There was some disclosure of this work by providing Chief Assu with an ITHA paystub, but not full disclosure.

[187] Providing full information to the WWK could have stimulated a conversation with the employer. It is unclear where the conversation would have gone if Mr.

Wilson had chosen to make full disclosure to the WWK. I find it probable, however, that Mr. Wilson chose not to disclose this work to Mr. Kelly, because of his concerns with the employer’s actions in 2016 of trying to limit his flexibility in hours and location of work, which was part of his harassment complaint and his lack of trust in Mr. Kelly.

[188] By the time Mr. Wilson took on the ITHA contract he was clearly working in a poisoned environment. He had already advised the WWK that he considered their actions a constructive dismissal, he had engaged counsel and he had sought his personnel file, which he knew contained proof of the employer’s past concessions regarding flexibility in 1989 and 2001.

[189] In my view, Mr. Wilson’s failure to clearly disclose to the WWK the scope of his ITHA work, was grounds for some discipline. The employer discovered the full scope of Mr. Wilson’s work with ITHA after termination when they acquired a copy of his contract. An employer can rely on “cause discovered after termination”: (see Böhmer v. Burns Lake Native Logging Ltd., 2018 BCSC 1052) but here the employer had some knowledge that Mr. Wilson was working for ITHA. I do not accept that Mr. Wilson was unavailable to the WWK because of his ITHA contract, or that this work was fundamentally inconsistent with his workplace obligations to the WWK.

[190] Mr. Wilson’s failure to make full disclosure deprived the WWK of an opportunity to consider the work he was doing for ITHA, whether it was work that was also of value to the WWK and how this work could be balanced with the WWK’s need for a full-time governance officer. I note, however, that this is not a case where Mr. Wilson concealed his work with the ITHA; his name was listed on their website, he drove one of their vehicles and he had provided Chief Assu with some evidence of his earnings with ITHA.

[191] What is surprising, however, is that the employer never instructed Mr.

Wilson to attend a meeting to investigate or discuss his activities with ITHA, when he returned to office briefly in November. Rather, the employer chose to press the issue of 8:00 to 4:00 work attendance at the WWK’s office.

Health Information

[192] There is also a balance between personal privacy and the employer’s need for information when it comes to assessing a continuing sick leave.

[193] Generally, an employee who takes a sick leave has to justify his absence from work, when that absence is challenged by an employer. An employer can ask for reasonable information that it needs to make a decision to grant continued leave. Further, information is often needed by an employer in order to accommodate a return to work. The fact that Mr. Wilson had a large bank of available sick time to draw on does not obviate the need for him to justify his sick leave, when requested to do so by the employer.

[194] The failure to provide information when it is reasonable to request that information can lead to discipline: Halfacre v. Attorney General of Canada, 2015 FCA 98, aff’g 2014 FC 360.

[195] Mr. Wilson provided very sketchy information to his employer about his absences from work. I accept the testimony of Dr. Carswell and Mr. Taylor that Mr. Wilson developed a mental health condition that was related to the work environment at the WWK’s office. There was some clarity about the diagnosis, but this diagnosis was never provided to the employer.

[196] However, Mr. Wilson was also working for ITHA. Dr. Carswell was not aware Mr. Wilson was on leave from the WWK and working for ITHA at the various

times he issued very brief notes to excuse Mr. Wilson’s absence from employment with the WWK.

[197] Mr. Wilson’s work for ITHA at a time when he was claiming to be unable to work for the WWK, is a circumstance that calls for an explanation from Mr. Wilson. In my view, the employer was entitled to further information in order to assess Mr. Wilson’s ongoing claim that he was unable to work. In the circumstances here Mr. Wilson’s failure to provide further information gives rise to cause for some discipline.

Termination was an Excessive Employer Response

[198] In summary, I find that Mr. Wilson committed disciplinary infractions by failing to fully disclose his relationship with ITHA and by failing to supply the employer with further medical information.

[199] The employer has taken the view that it dismissed Mr. Wilson because he was ungovernable based on his accumulated misconduct. I do not agree. In my view termination was an excessive employer response and Mr. Wilson was unjustly dismissed.

[200] The employer’s conduct is assessed on the basis of the information it knew, or should reasonably have known, at the time of its decision. It must do so with a contextualized or nuanced response: McKinley.

[201] Mr. Wilson was a long-term employee. He provided valuable services to the WWK over his employment history. He was dedicated to improving life for members and improving governance of the WWK.

[202] Given the sick leave records in this case, up until the fall of 2016, Mr. Wilson was rarely absent from work over the course of his lengthy history with the WWK.

He had no history of abusing sick leave. He also had accumulated substantial sick leave.

[203] Mr. Wilson had performed the work that was assigned. He has never been disciplined for work performance issues.

[204] Through repeated attempts Mr. Wilson attempted to address his concerns with how he was being treated by the employer. It is obvious through Mr. Wilson’s testimony and the documents, that he did not wish to quit and sue the employer for constructive dismissal. He clearly identified to the employer that he considered their actions to be a constructive dismissal.

[205] He was working in a poisoned and hostile work environment for some time.

[206] In my view Mr. Wilson is properly entitled to resist the employer’s unilateral action in requiring him to work a specific time at a specific location, when he had a long history of flexibility in his hours and place of work. He resisted, properly, the employer’s attempt to modify a flexible work arrangement to an inflexible one that would have substantially impacted his ability to take on other remunerative projects.

[207] If the employer was concerned with Mr. Wilson’s work with the ITHA it should have called him into the office for a discussion about this after he returned to the office in November. Rather than doing this, the employer sought to redefine his job by removing the flexibility of place and hours of work he had enjoyed for 34 years, without any notice.

[208] The WWK’s employee policy calls for progressive discipline. The employer failed to apply an approach of progressive discipline. Further, there were other tools available to the employer to attempt to obtain further medical information, which could have included writing a letter to Dr. Carswell and requesting Mr. Wilson provide consent for the release of information. 49

[209] Applying all these considerations, the WWK dismissal of Mr. Wilson was inordinate disciplinary action in the circumstances of this case. The employer should have considered and applied a suspension.

[210] Ordinarily a suspension without pay at common-law can also be characterized as a constructive dismissal. There is some basis in the WWK’s employee policy, however, for imposing a suspension, without pay, for up to two weeks. In my view, this is a case which would warrant a suspension without pay. In my view a one week suspension would be one fitting in the circumstances, given the length of Mr. Wilson’s seniority, his good work, good attendance record and the other relevant factors.

Remedy - Damages

[211] Under the Code the starting point for remedies for unjust dismissal is reinstatement of the employee. Mr. Wilson does not seek reinstatement. He seeks damages. I have assessed damages on a make whole basis – the approach envisaged in s. 242 of the Code, rather than a notice period approach which is used by the courts in wrongful dismissal cases: Wilson v. Atomic Energy of Canada Ltd., [2015] S.C.C.A. No. 114, para 63 - 64

[212] I award Mr. Wilson damages for the period from his termination until September 16, 2018, the date of this decision. The measure of damages will be the difference between his WWK salary, less a credit for mitigation ( some of his ITHA earnings) and less one week that would be the financial impact of a suspension without pay. He is also entitled to a top up for an RRSP contribution and the value of his vacation bank, as well as aggravated damages. For the reasons set out below I decline to award damages for the value of his sick leave bank.

[213] Mr. Wilson earned a salary of $73,000 annually from his work with the WWK. This amounts to $1,403.85 per week for a 37.5 hour work week.

[214] According to his unchallenged testimony and record of employment (Exhibit C, Tab 74, 0.167) Mr. Wilson was only paid until January 20, 2017 and he was terminated on February 10, 2017. He is entitled to be compensated for this period - $4,211.55.

[215] His loss from the date of termination to the date of this decision, is $1,403.85 per week for a total of $116,519.55.

[216] From this amount I must deduct the value of a one week suspension - $1,403.85.

[217] He is entitled to a 9 % top up for his RRSP, or $10,739.45.

[218] Mr. Wilson had an issue about the non-payment of his cell phone bill which was resolved by the date of submissions. The amount is agreed at $327.98. Therefore I need not address this as an element of damages.

Cashing out the sick bank

[219] According to my calculations the value of the sick bank was $63,960. This is substantial.

[220] I am not satisfied on the basis of the evidence that Mr. Wilson was entitled to the cash value of the bank. I appreciate that there is a make whole approach to assessing damages under the Code. The issue here is that Mr. Wilson has not proven an entitlement to the cash value of his sick leave.

[221] Generally sick leave is granted for the purpose of ensuring that an

employee does not lose wages because of illness or disability. The employer’s employee policy does not deal with sick leave cash outs, but I also take Mr. Wilson’s point that this was a policy introduced unilaterally by the employer and does not apply for him.

[222] Mr. Wilson has established no contractual basis for a sick leave cash out.

[223] Sick leave cash outs are not unknown in the unionized sector, but are usually the subject of collective agreement language. Often the cash out is not “hour for hour” but on some reduced basis and there can be significant variation between different collective agreements.

[224] In the absence of any clear contractual language agreement sick leave is subject to the principle of “use it or lose it.” Clear contractual language would be required before an employer is obliged to pay a “cash out value” of sick leave upon termination. There is no clear contractual language in this case. The burden of proving this loss is on Mr. Wilson and I am not satisfied that he has made out this loss on a balance of probabilities.

Holiday Bank

[225] Vacation pay is treated under the Code as wages. Mr. Wilson’s vacation entitlement far exceeds the “floor” set out in the Code. Nevertheless, he is in entitled to damages for the value of the vacation unused. The burden of proof is on him, however, to establish this element of damages.

[226] The parties agree that Mr. Wilson was entitled to six weeks of paid vacation per year. Further, both parties agree that Mr. Wilson was entitled to accumulate this vacation. Mr. Kelly testified that the WWK permitted the carry over as it was not in a final position to “cash out” vacation time.

[227] Mr. Wilson claims an entitlement to 271 days of vacation, accumulated at a rate of six weeks per year since 2001. This would be 54.2 weeks. This may well be the time he accrued but it appears that this may not take into account all the vacation time he used.

[228] The WWK supplied records showing Mr. Wilson’s vacation time accumulation and usage from March 1998 to March 18, 2016 (Exhibit A, Tab 1) and from March 18 2016 to January 20, 2017 (Exhibit A, Tab 57).

[229] Mr. Wilson also agreed in cross-examination that the employer’s records about his vacation time use (Exhibit A, Tab 57) were accurate. These records show that immediately before Mr. Wilson took his vacation commencing July 8, 2016, he was entitled to 676.824 hours of vacation.

[230] The employer argues that Mr. Wilson is not entitled to anything further for vacation pay based on its records. (Exhibit A, Tab 1 and Tab 57). As of January 20, 2017, however, the employer’s records show 2.79 hours hour in his vacation bank.

[231] In my view the employer’s numbers are not correct. This is because the employer allocated 144.00 hours from November 28, 2016 to January 8, 2017 and 58 hours from January 9 to 18, 2017 as vacation taken by Mr. Wilson. The employer should have accounted for this as sick leave as Mr. Wilson had presented doctor’s notes which were unchallenged by the employer until February of 2017. Mr. Wilson had significant time in his sick leave bank and more than enough to cover these 202 hours the employer chose to allocate against his vacation bank. The employer used its policy to accumulated sick leave rather than Mr. Wilson’s actual entitlement.

[232] On the employer’s records, as adjusted, the vacation balance should have been 204.79 hours or 5.46 weeks

[233] I prefer the employer’s records as adjusted. Mr. Wilson’s oral testimony of 271 days of vacation is not supported by records. I accept that he believes this entitlement is accurate, but the proof is on him and his oral testimony cannot displace the documentary evidence on this point. Based on an annual salary of 73,000 or $1,403.85 per week for 5.46 weeks, the value of the holiday bank is $ $7,665.02.

Mitigation

[234] The employer argued that all his earnings from ITHA should be taken into account including monies received prior to termination. I do not agree. Mr. Wilson could work on his holidays for ITHA. He could also work after hours for ITHA. Therefore there can be no reduction up until the date of his termination.

[235] Mr. Wilson argues that a certain portion of the ITHA income could have been earned as a consultant while working for the WWK and therefore it is only the extra amount that Mr. Wilson earned as an employee that should be considered.

[236] After termination on April 1, 2017 he became an ITHA employee with a regular work schedule. It is proper to take the earnings from ITHA into account.

[237] In my view mitigation should be assessed on the following basis. Once Mr. Wilson was offered full time employment with ITHA, he was required to work full-time hours. Under his consulting contract he could work as little as 3 days per week flexibly.

[238] The employer should be credited with two days per week at his ITHA employee rate from April 1, 2017 when he accepted full time work until the date of this decision. It also appears when Mr. Wilson accepted the full-time work as an

employee he was mainly working from the Nanaimo office.

[239] If he had not been unjustly dismissed, Mr. Wilson could have worked three days per week as a consultant (after WWK hours), but improbable that he could have worked five days per week as a consultant. Under his present arrangement with ITHA it is unclear that he has the flexibility to work elsewhere and there is no evidence that he has worked elsewhere. The employer should be credited with the value of two days per week pay from his work at his employee rate of $349 per day or $798 per week from April 1, 2017 when he was offered full-time work.

[240] In my view mitigation credit to the employer is assessed at $798 per week for 76 weeks from April 1, 2017 to September 15, 2017 and amounts to $60,648.

Aggravated Damages

[241] An adjudicator can award aggravated damages for the manner in which an employee was terminated: George v. Cowichan Tribes, 2015 BCSC 513; Keays v. Honda Canada Inc., 2008 SCC39; Schwarz v. Liard First Nation, 2014 CarswellNat 3251 (Dorsey); Tl'azt 'en First Nation v. Joseph, [2013] F.C.J. No. 841

[242] Adjudicators under the Code have awarded damages for emotional distress arising from the termination: Gandolfi v. Hishkoonikum Education Authority, [2006] CLAD No 198, 52 CCEL (3d) 108.

[243] In Wallace v. United Grain Growers Ltd., [1977] 3 S.C.R. 701, para 98 the Court stated that the duty of good faith could not be defined precisely “. . . However, at minimum I believe that in the course of dismissal employers ought to be candid, reasonable, honest and forthright with their employees and they should refrain from engaging in conduct that is unfair, misleading or unduly sensitive.”

[244] In Bailey v. Service Corporation International Canada ULC, 2018 BCSC 235, the court awarded $25,000 aggravated damages where the employer terminated the former long service employee who was sick at the time of termination and the employer failed to advise him he was terminated.

[245] In George v. Cowichan Tribes, 2015 BCSC 513, the Court awarded $35,000 for aggravated damages where the employer failed to allow a long-term manager the opportunity to answer allegations of dishonesty, prior to her termination.

[246] In Spruce Hollow Heavy Haul Ltd. v. Madill, 2015 FC 1182, the Federal Court upheld an award of $50,000 for aggravated damages where the employer’s conduct was harsh and vindictive.

[247] In Tl'azt 'en First Nation v. Joseph, the Federal Court upheld an award for $100,000 for aggravated damages where the employer made unfounded allegations of dishonesty.

[248] There appears to be no business reason why the employer embarked on its initiative to have Mr. Wilson work from the WWK’s office, between 8:00 to 4:00, particularly when he had 34 years of flexibility in his employment. I do not accept Mr. Kelly’s testimony that this related to Mr. Wilson’s loss of the KDC election and loss of an office at the KDC building, as the initiative started well before the election.

[249] This appears to be a deliberate attempt to “reign in” Mr. Wilson’s activities. Further I note that he was an older employee and likely the highest earning employee at the WWK. Mr. Kelly said that there had always been a concern that Mr. Wilson was drawing one of the highest salaries at the WWK and he had outside interests which generated income. Apparently this concern was expressed

by councillors at a council meeting in January of 2016. It appears that a certain faction of council did not see the value in Mr. Wilson’s work and wanted him gone.

[250] I find that the direction that was ultimately given to work 8:00 to 4:00 at the Band office was given to limit Mr. Wilson’s opportunities to earn outside income. The actions were premeditated and intended to cause financial harm. In my view, as long as Mr. Wilson was doing his job, and there was no conflict, the employer had no right to prevent him from doing consulting work or working on other projects.

[251] The employer deliberately attempted to enforce its view of the hours and place of work on Mr. Wilson. Council refused to hear Mr. Wilson, and the Council and Mr. Kelly chose to ignore Mr. Wilson’s complaints about harassment. This created a poisoned work environment during 2016 and 2017.

[252] The employer also painted a picture of Mr. Wilson not performing job duties when the employer failed to provide clear direction, and at times frustrated Mr. Wilson in the performance of duties by not providing him with the information or feedback he needed to do his job. It was patently untrue that Mr. Wilson failed or neglected to perform duties. The true facts are that the WWK was attempting to shift the nature of the duties performed by Mr. Wilson and his working conditions.

[253] Mr. Wilson is an accomplished person who had accomplished much for the WWK. Being dismissed in these circumstances was humiliating for him. He sought counselling services after termination and the specific problem was an adjustment disorder with depression and anxiety which can be directly traced to how he was treated in the workplace.

[254] Further, any reasonable employer would have known that the conditions it subjected Mr. Wilson to would be bound to have a detrimental emotional effect. Here there is evidence of depression, anxiety and adjustment problems which

were caused by the employer’s action. There is no other explanation why a high functioning individual such as Mr. Wilson was unable to attend at the WWK’s office. He did the best he could be working on the side.

[255] Mr. Wilson was afforded no opportunity to tell his side of the story to council and no one addressed his harassment complaints. Mr. Kelly threatened him with consequences of filing a false complaint - termination - and the employer in part retaliated and terminated Mr. Wilson based its allegation of false harassment complaints. The substance of Mr. Wilson’s harassment complaints appear substantiated although he used colourful language in expressing some of his complaints. Mr. Wilson had not been disciplined previously for the use of colourful language.

[256] In my view this warrants an award of aggravated damages. The range for aggravated damages appears to be $10,000 to $100,000, based on the case law submitted by the parties. Mr. Wilson asks for an award of $50,000 and no less than $10,000. The WWK says that this claim should be dismissed.

[257] In my view there is no case that is similar to how Mr. Wilson was treated by this employer. Bearing in mind the factors applicable to an award as set out above, I award $45,000 for aggravated damages.

[258] In summary, the damages under Part III of the Code are $122,083.72 as set out below:

Loss from January 20 to February 10, 2017 $ 4,211.55 3 weeks Loss from February 10 2017 to September $116,519.55 16, 2018 (date of decision)

Less value of 1 week suspension $ 1,403.85 Sub-Total $119,327.25 RRSP Top up at 9 % $ 10,739.45 Holiday Bank $ 58

$7,665.02. Aggravated Damages $ 45,000 Less Mitigated earnings from ITHA $ 60,648 Sick Bank Time No award Total $122,083.72

Damages under the CHRA

Mr. Wilson’s argument

[259] Mr. Wilson seeks damages under the CHRA on the basis that he was terminated while he was on disability. He says that he has made out a prima facie case of discrimination and breaches of section 3(1) and (7) of the CHRA. He says that his depression and anxiety amounts to a disability under the CHRT: Mellon v. Canada (Human Resources and Development), 2006 CHRT 4 at para 76 – 112. Alternatively, Mr. Wilson states that because the employer perceived him to be sick, its actions were discriminatory. Mr. Wilson says that he was treated negatively or adversely because of:

 Demands for intrusive medical information;  Issuing a letter pressuring him to attend work while it knew he was absent due to illness;  Reissuing a letter on November 28, 2016 demanding he return to work;  Terminating Mr. Wilson;  Terminating his disability benefits.

[260] Mr. Wilson argues that the employer failed to accommodate him and breached section 15(2) of the CHRA. He had substantial accumulated sick leave. There is no evidence that the employer took any steps to accommodate him.

Employer’s argument

[261] The employer states that Mr. Wilson has not established a prima facie case based on disability. He provided insufficient evidence to establish a disability. He had been declared fit for work on November 25, 2016 by his doctor. He was able to work with ITHA and did not provide any evidence that he was disabled from his job with the WWK. He was also able to complete an alcohol and drug counsellor course. The WWK is unable to accommodate a disability that it knew nothing about and it knew nothing about a disability because Mr. Wilson did not provide sufficient medical information.

Analysis

[262] It is questionable whether the parties can cloak an adjudicator appointed under Part III of the Code with jurisdiction to hear and decide a complaint under the CHRA. Because of the expense involved in litigation in multiple forums and because the parties jointly have asked me to do so, I have provided my views.

[263] In substance, I do not see this as a discrimination based on disability case. Rather I see it as a deliberate attempt by the employer to reign in Mr. Wilson and improperly alter his terms and conditions of employment. It is simply a constructive dismissal case. Mr. Wilson’s refusal to attend work as directed and his failure to provide further medical information were the basis for the employer terminating his employment. In substance, however, he was dismissed for insubordination, which the employer characterized as a resignation for refusing to accept the options it presented.

[264] Under Part III of the Code, I have found that by failing to disclose his consulting commitments with ITHA and failing to provide detailed medical information, his conduct merited some discipline, but not termination. The dismissal was unjust. I awarded a full remedy under the Code including aggravated damages.

[265] In assessing this human rights complaint I must first consider whether Mr. Wilson has established a prima facie case of discrimination on the basis of disability: British Columbia (Public Service Employee Relations Commission v. B.C.G.E.U., [1999] 3 S.C.R. If this has been established, I must then consider whether the employer has established that the impugned acts amount to a bona fide occupational requirement. The employer is required to accommodate the employee to the point of undue hardship.

[266] I accept the employer’s argument set out at paragraph 109 of its written argument that:

In order to establish a prima facie case of discrimination under the CHRA, Mr. Wilson must establish that, (1) he has, or was perceived to have, a physical disability, (2) that he was adversely treated (i.e. that his employment was terminated), and, (3) that his physical disability was a factor in the adverse treatment (i.e. that there is some link or nexus between the physical disability and the adverse treatment. Moore v. British Columbia (Education), 2012 SCC 61

(emphasis added)

[267] I note from the authorities provided that not every medical condition will amount to a disability: Naser v. Zellers and McNally (No. 2),2006 BCHRT 427, applying Boyce v. City of New Westminster (City), 1994 B.C.C.H.R.D. No. 33; Schodra v. Vancouver Axle & Frame and Miller, 2009 BCHRT 173, and Ontario Human Rights Commission v. Etobicoke (Burrough), [1982] 1 S.C.R. 202.

[268] In order to find that Mr. Wilson suffered from a disability there must be cogent and convincing evidence that he has a medical condition of sufficient import (severity, permanency and persistence) to impair his ability to perform sufficient functions that most people can perform. Generally, disability is broadly interpreted to ensure that the remedial aspects of the CHRA are achieved.

[269] Dr. Carswell opined that Mr. Wilson was suffering from depression and anxiety and he was unable to work. These findings are not mentioned in the medical notes provided to the employer before it terminated Mr. Wilson. At the time Dr. Carswell or his locum wrote the medical notes supporting Mr. Wilson’s claim for medical leave Dr. Carswell did not know that Mr. Wilson was actually working for ITHA.

[270] This is not a case like Mellon v. Canada (Human Resources Development Canada), 2006 CHRT 3, where the employer knew or should have known or suspected that Mr. Wilson was having problems amounting to a disability, or a perceived disability, because of past disclosures of a medical issue, current disclosure of a reoccurrence and demonstrated performance issues at work.

[271] None of these elements are present in this case. As I noted earlier there was no demonstrated issue of poor performance by Mr. Wilson. At best the employer would have known that its actions were causing stress for Mr. Wilson from his April email. Mr. Wilson did not leave the WWK in July because of stress, but because he took vacation. Mr. Wilson consults a doctor first in September when he was not given an opportunity to address council about his harassment complaints. It was not until mid November when Mr. Wilson started to take medical leaves, when the employer first attempted to require him to work 8:00 to 4:00.

[272] Mr. Wilson’s medical leaves followed his return from vacation. During his vacation he worked with ITHA. The objective facts before me show that Mr. Wilson continued to consult for ITHA, while employed by the WWK, until he was 62

terminated by the WWK. The employer suspected he was working with ITHA, determined he was listed on the ITHA website as the governance officer but never sought to clarify this with him.

[273] It appears that Mr. Wilson was capable of working for ITHA during the relevant period leading to termination. There is no evidence before me of any problems in his work performance at ITHA. Further, Mr. Wilson took a course of studies and there is no evidence before me of any problems with working on his studies.

[274] I accept the possibility that a person may react negatively to one work environment - the WWK’s environment - and yet be capable of working productively in another environment. I also accept the premise that in order to establish a disability under the CHRA it needs not be a full disability or a permanent disability.

[275] However, Mr. Wilson must prove he has a disability under the CHRA, or alternatively that the employer perceived he had a disability. The testimony of Dr. Carswell and Mr. Taylor allow me to conclude that there was some emotional impact arising from a poisonous workplace environment. However, Mr. Wilson was able to do his ITHA consulting work and coursework. Further, Dr. Carswell at the time he gave Mr. Wilson time off work, did not realize that Mr. Wilson was in fact working for ITHA.

[276] The issue of proof of disability is clouded because Mr. Wilson appeared to be resisting the WWK’s attempt to have him report to work on what he considered to be terms significantly altering his employment contract. Mr. Wilson did not accept the new terms. I accept that this was causing a stress problem for him and he avoided the WWK workplace and in essence kept busy by doing the ITHA work. I am not satisfied however, in the circumstances of this case that Mr. Wilson has proven a disability.

[277] .Mr. Wilson can make out a prima facie case under the CHRA if he can establish a “perceived disability” by the employer. This has to be assessed within the context of what the employer knew or ought to have known about Mr. Wilson at the time that it made its termination decision.

[278] It is clear that the employer had no direct information from Mr. Wilson about his emotional state from November of 2016 onwards. The employer did not have the benefit of any detailed information from Dr. Carswell. The employer had requested further information but Mr. Wilson had not provided this information.

[279] Mr. Wilson’s counsel at the time wrote letters to the employer’s counsel containing statements about Mr. Wilson’s medical condition, however, these are submissions, made in the context of a live dispute about constructive dismissal and not the medical evidence that an employer requires to assess disability or accommodation issues.

[280] The clear facts known to the WWK were that Mr. Wilson was apparently capable of working for ITHA during the period when he was not working for the WWK and alleging he was unable to work for the WWK. On the face of it, without the additional testimony of Dr. Carswell and Mr. Taylor at the hearing, Mr. Wilson’s claim that he was unable to work at the WWK makes little sense. In these circumstances the employer cannot be faulted for treating the assertion of disability in a skeptical manner. I am not satisfied that the employer knew or ought to have perceived Mr. Wilson was under a disability.

[281] Employers do have the right to require an employee to justify a claim of sick leave. It is not per se a discriminatory act to ask an employee to justify a sick leave. The WWK should not have terminated Mr. Wilson, but I am not satisfied that the employer’s actions - termination essentially for insubordinate conduct - can be characterized as discrimination on the basis of disability under the CHRA.

[282] I am not satisfied that Mr. Wilson provided sufficient information to the WWK to permit it to determine whether Mr. Wilson was disabled from working or to engage in an analysis of how to accommodate Mr. Wilson. One of the primary purposes of the CHRA is to ensure that individuals are treated as individuals and not on discriminatory differences. It is important not to trivialize the nature of the CHRA, as it is important legislation which bears on workers’ rights. WWK treated Mr. Wilson and dismissed him as if he were an insubordinate employee. Therefore I am not satisfied that Mr. Wilson’s dismissal was linked to disability or that it was a discriminatory act in violation of the CHRA.

[283] Mr. Wilson worked in a poisoned work environment and this can sometimes be characterized as discrimination under the CHRA leading to an award of damages. There is no factual link between the poisoned work environment and any prohibited grounds under the CHRA. The poisoned work environment is entirely linked to the WWK’s failure to deal with Mr. Wilson in a fair and transparent manner when it was seeking to introduce changes into the terms and conditions of his employment. It was not linked to a disability or a perceived disability.

[284] I therefore dismiss Mr. Wilson’s claim for damages under the CHRA.

Summary of Damages

[285] In summary, Mr. Wilson is entitled to damages under Part III of the Code as follows:

Loss from January 20 to February 10, 2017 $ 4,211.55 3 weeks Loss from February 10 2017 to September $116,519.55 16, 2018 (date of decision)

Less value of 1 week suspension $ 1,403.85 Sub-Total $119,327.25 RRSP Top up at 9 % $ 10,739.45 Holiday Bank $ 7,665.02. 65

Aggravated Damages $ 45,000 Less Mitigated earnings from ITHA $ 60,648 Sick Bank Time No award Damages under the CHRA No award Total $122,083.72

Interest

[286] The parties made no submissions on interest or how it should be calculated. In my view there is an entitlement to interest and I would like to have the parties written submissions, if the parties are unable to agree.

Costs

[287] I find that Mr. Wilson has been successful in his claim under Part III of the Code. Under the make whole remedy of the Code he is entitled to costs and disbursements, unless there are circumstances that bear on the issue of costs that the parties wish to draw to my attention. If the parties are unable to agree, on the basis of the assessment or amount, the parties may bring this issue back before me by written submissions, within 60 days of the date of this decision.

[288] I reserve jurisdiction over the implementation of this decision, including the award of interest and costs.

Dated September 16, 2018 at Campbell River, British Columbia

______Paul Love, Adjudicator BSc, LLB, C.Arb, FCIarb, DIpICArb