First Nations and Municipal Governments: do you need a neutral third party to assist with workplace investigations?

Introduction

As herculean tasks go, First Nations and Municipal governments face a monumental one. They both have to somehow balance a diverse range of local interests and at the same time ensure their legal obligations as employers are met. Added to this burden, they have to deal with conflicting legislative requirements meaning a host of issues can arise, such as:

• Workplace privacy and collection of confidential information
• Conflicts of interest or unsanctioned performance management
• Occupational health and safety
• Bullying and harassment
• Unjust dismissal
• First Nations Modernization of Governance Models

When confronting these issues, Senior Managers and Human Resources professionals are often perceived as not being neutral enough and can struggle with the legal complexities. This is where Neil Hain can assist as a neutral third party focusing on workplace investigation and mediation or arbitration.

A deeper look into some of the issues First Nations and Municipal Government may face

A. Federal vs Provincial law in Workplace Privacy and Collection of Confidential Information

First Nations have legal obligations through federal law in how they collect, use and distribute information in the course of their commercial activities. The rules are established through the federal statute: Personal Information Protection and Electronic Documents Act S.C. 2000, c.5. Where a First Nation is found to be in breach of these rules, the matter is then decided in the Federal Court.

This differs from Municipal Government, which has obligations in how they collect, use and distribute information under provincial law: see the Freedom of Information and Protection of Privacy Act.

Complex legal issues can occur when either First Nations or Municipal Government misuse information, improperly release information to third parties or take part in unsanctioned or unauthorized surveillance. Due to the intricacies of these disputes, often an in-depth workplace investigation is advisable to uncover the facts before further dispute resolution can occur.

B. Two Types of Misconduct: Conflict of Interest or Unsanctioned Performance Management

A conflict of interest occurs when the employee’s behaviour or interests interfere with their ability to carry out their workplace responsibilities. Conflicts can result from nepotism, office romances, revealing trade secrets, accepting gifts, and social media posts among many other causes. All employees have a duty of faithfulness to their employer as shown in: Supreme Court of British Columbia in Rupert v. School Dist. No. 61, 2001 BCSC 700 (CanLII).

On the other hand, an employer can be liable for failing to maintain a bullying and harassment-free work environment. This occurs when managers use disrespectful communication methods such as: belittling, taunting, swearing or shouting at a subordinate during an unscheduled or unsanctioned performance management meeting.

These two situations are both multifaceted with high sensitivities, and may require a detailed workplace investigation to determine whether a conflict exists or bullying or harassment has occurred.

C. Everyone is Responsible: Occupational Health and Safety

Organizations and individuals can be held liable for not reporting unsafe working conditions. In British Columbia, the Workers Compensation Act, RSBC 1996, c 492 (the “Act”) and its 12 regulations promote, protect, and demonstrate how workplace health and safety should be carried out. It is recommended that expert professional help is sought with workplace issues due to the seriousness of consequences if obligations are overlooked.

D. A Workplace Free of Bullying and Harassment

As part of obligations under the Act, employers are required to maintain a workplace free of bullying and harassment. Navigating the complexities of the Act can be challenging for First Nations and Municipal Government. For example, if a member of the public or the First Nations community acts in an aggressive way to staff, the employer can be liable if they fail to properly investigate and/or make the situation better: see Section 173 of the Act.

Administrative penalties can also be given for not taking workplace aggression seriously enough. Examples are where one worker pokes another in the chest and threatens a physical assault or where a member of the community sought to rob the employer’s premises. As in these cases, Worksafe strictly applies the Act where they find employers have not taken adequate steps to protect their staff: see WCAT 2004-000641; WCAT 2013-00356.

If in doubt, you may consult with Neil Hain to help you better understand your obligations.

E. Redress for Unjust dismissal

Employers are required to avoid unjust dismissal tainted by political considerations. If an employee believes they have been unjustly dismissed, there are different avenues in seeking redress depending on whether they are First Nations or Municipal Government.

A First Nations worker can seek remedy through section 240 of the Canada Labour Code.

While a Municipal Government worker can seek redress through the Collective Agreement process (if they hold a bargaining unit position). If the worker is deemed an ‘excluded worker’, then they can potentially seek redress through various provincial tribunals including the BC Employment Standards Branch and Human Rights Tribunal or for federal workers through the Canadian Human Rights Commission.  Failing these, they can pursue a lawsuit in the British Columbia Supreme Court or for some federal workers in the Federal Court of Canada.

F. On First Nations Modernization of Governance Models

A key part of modernization of First Nations’ governance is the restructuring of complex Limited Partnerships, Societies, Corporations and businesses into more streamlined organizations. This is in line with the increasing demands of legal and financial obligations to their members. To oversee these new streamlined organizations, the role of CEO has been strengthened and given further duties. Some of the many benefits from modernization of governance models are:

• Efficient decision making
• Avoidance of conflicts
• Minimizing costs
• Increasing employment opportunities
• Enhancing the skills matrix for Board members

Senior Managers and Human Resources professionals can contact Neil Hain if they require guidance on First Nations’ governance strategy.

Executive Summary

First Nations and Municipal Government have a difficult task of balancing their constituencies’ interests and ensuring their legal obligations as employers are met. In many instances, they find themselves dealing with competing legislative obligations that result in complex issues.

There are significant pitfalls involved with each of these issues and professional assistance is recommended when approaching any of the subjects mentioned above.

Conclusion

Senior Managers and Human Resources professionals often struggle with resolving First Nations and Municipal Government issues. An experienced, neutral third party can provide an in-depth understanding of the complexities and sensitivities involved. Neil Hain has over 20 years legal experience in British Columbia and is responsible for thousands of investigations, mediations, and arbitrations. Assistance is available for the following services:

• Workplace investigation: impartial fact-finding and reporting that allows an employer to take the appropriate actions.
• Mediation: a neutral third party helps disputing parties to resolve an issue. The process is private, flexible, informative and voluntarily binding.
• Arbitration: involves a dispute that is decided outside of courts by a neutral third party. It is quick, cost-effective, private, flexible and final.