Anything can happen in a courtroom

A woman we will call Betty worked as an assistant Band registrar for a Band Council. She had that job for 19 years before she was terminated.
 
In December of 2006, Betty wrote a letter to the Chief of the Council of the First Nation entitled “Gang – Members and Initiations of Our Young People”. Betty distributed that letter throughout the membership of the Band, which included everyone in the community of which she was part. 
 
Betty was concerned as a member of the community about gang violence and the failure that she perceived of the local Council to address it. In this letter she told the story of a particular boy who was assaulted by a “posse” of friends as part of an initiation into their gang. She also mentioned that two other boys had been initiated into the gang. She included in the letter the birthdates of each of these young men.
 
Not long after this letter was circulated, the Band Council, her employer, received a letter of complaint from other members of the Band who alleged that Betty had used confidential Band registry information to obtain two of the three birth dates she published in her letter.
 
Betty’s boss promptly sent her a memo asking how she obtained the birth dates in her letter. Betty said, in a responding memo, that she had asked the mother of one of the boys for the birth date and implied that she had obtained the other birth date in the same manner.
 
The issue was brought up at a Band Council meeting and it was decided that a restorative justice meeting would be held. In that meeting, Betty apologized to the complainants. The consensus at the end of the meeting was that things had been resolved. Of course, if that was the end of the story I wouldn’t be writing an article about Betty.  A few days later, Betty’s boss learned from the two mothers that they had not given her their sons’ birth dates.
 
Within a week, Betty’s employment was terminated. The employer alleged that they had just cause for her termination since she had breached confidentiality and lied to her employer when the matter was being investigated.
 
Because Betty worked for a Band Council, she filed a complaint with the Canada Labour Board for unjust dismissal. People who work for federally regulated organizations such as Betty’s employer, banks, airlines and broadcasters have a special remedy not available to the rest of us when we are terminated. If the adjudicator finds that there was not just cause for the termination they can order lost wages be paid and order the employee to be reinstated to their old position.
 
It came out at the hearing that in fact Band member birth dates were not confidential information as they were routinely published in the local newspaper and Band lists. Anyone who wanted them that was a member of the Band could see them. It appeared that nobody had pointed this out at the special Band Council meeting or the restorative justice meeting.
 
The adjudicator found that the Band had exaggerated the severity of the event and that only five people were affected. The adjudicator also found that the Band should have taken into account the apology and special restorative justice meeting that had resolved this issue.
 
Part of your brain must still be thinking, but Betty lied to her employer. Even if she didn’t breach confidentiality, how can they trust her going forward if she will lie about a significant issue to serve her interests?
 
The problem was that when this matter went to a hearing, one of the mothers who had told Betty’s boss she had not revealed her son’s birth date gave evidence that she couldn’t really remember and Betty may well have asked her for the information.
 
With respect to the other mother, Betty never actually said in her memo to her boss that she had gotten the birth date from her. She simply said that the mother was a friend of hers and fully aware that her son was associated with the gang and would rather stay out of it because she thought the Band could not do anything about it.
 
At the end of the day, that change in information probably saved Betty’s case. She was reinstated with back pay. Although the employer appealed the ruling twice, the end result was the same.
 
If Betty had been dishonest with respect to the inquiry from her boss, there’s a good chance there would have been just cause for her termination, even after 19 years. It was a serious issue and the Band had received a public complaint. This wasn’t like the little lies that happened about late reports and incomplete work every day in every work place. It was important enough for her boss to ask the question in writing and she responded in writing.
 
I am sure the boss’s jaw dropped in the hearing room when the mother that had told him she had never given Betty her son’s birth date suddenly conceded that it might have happened. In that moment, everything changed.
 
There is never such thing as a sure case. Anything can happen in a courtroom and unexpected things almost always do.
 
As published in the Hamilton Spectator, February 20, 2011
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com