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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 v. 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. 1 [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 2 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 5 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- 6 in-chief and cross-examination in a careful, thoughtful and respectful manner.

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