When employees leave the workplace angry you are more likely to hear from a lawyer with a demand letter. Employees are more likely to call our office, after being terminated, when they feel that they have been unfairly treated, regardless of whether that belief is well founded.

The best strategy to prevent employees from feeling that they have been unfairly treated is to hear their complaints and promptly respond to the issue. If the problem is the employee's conduct at work, you should apply progressive discipline, explaining at each stage how you expect the employee's conduct should change, so they understand your expectations. Properly applying progressive discipline is also key to defending a wrongful dismissal complaint. Membertou First Nation might not have found itself at the Canadian Human Rights Tribunal if it had properly addressed Joanne Johnson's concerns and applied progressive discipline for her misconduct, as she may have better understood the reasons for her termination.

Johnson v Membertou First Nation (2024 CHRT 16)

In Johnson v Membertou First Nation (2024 CHRT 16), Joanne Johnson started working for Membertou First Nation (MFN) in 2011 as a cashier in its gaming facility. She was later promoted in 2015 to the supervisory lead cashier. In 2018, MFN opened the Lanes Bowling Alley (Lanes), which consists of bowling lanes and a restaurant/bar. Ms. Johnson was interviewed and hired by MFN to be the general manager of Lanes with a contract that was subject to a period of probation. While working at Lanes, Ms. Johnson had issues with other management and staff, especially AB. Ms. Johnston continuously complained about a lack of communication and not getting sufficient training to apply MFN's policies. As Ms. Johnston's probationary period neared its end, MFN conducted a performance evaluation and extended her probationary period for three additional months, partly over concerns about how she acted in the workplace. These three months passed, and Ms. Johnston did not hear anything from MFN. A couple of weeks later, AB was promoted to be Ms. Johnston's assistant manager, since Ms. Johnston deemed AB to be incompetent, Ms. Johnston sent an email that seemed to suggest that it was either her or AB who should stay employed. The next day, MFN terminated her employment effective immediately, claiming that it did not need to provide her with anything as she was on probation. However, to assist her in transitioning in employment, they will give her two weeks of pay in lieu of notice. When Ms. Johnston tried to appeal the decision, through a committee set up to do so, a right noted in her termination letter, she did not get a response. Ms. Johnston then decided to file a complaint with the Canadian Human Rights Tribunal, claiming that she was discriminated against based on her colour, national or ethnic origin, or race.

The Canadian Human Rights Tribunal dismissed Ms. Johnston's complaint. The tribunal summarized that the essence of Ms. Johnston's complaint was that she was treated differently because she was not Indigenous or a member of the MFN. Ms. Johnston felt that AB, a member of MFN, did not deserve to be promoted to the assistant manager job, as she believed that AB was not competent. In its analysis, the tribunal found that Ms. Johnston did fall in a category protected by the Canadian Human Rights Act, and that she did face an adverse impact because her probationary period was extended, and because she was terminated. The key flaw was that Ms. Johnston could not connect those two categories. The tribunal found that the reason Ms. Johnston's probationary period was extended was because of her poor score in the performance review. The tribunal found that Ms. Johnston was ultimately terminated because of MFN's perception of her performance and her ultimatum of her leaving or AB leaving.

Takeaways from Johnson v Membertou First Nation (2024 CHRT 16)

It does not surprise me that this complaint was dismissed. It is clear from the text that Ms. Johnston did not have a strong human rights complaint. I have seen cases where a person is making a poor human rights complaint for a decision that at its face is not discriminatory. These people waste time and expenses, not helping anyone in the process.

What surprises me is the choice to not bring this workplace complaint through the process set out in the Canada Labour Code (CLC). In that setting, Ms. Johnston could have attempted to argue that MFN had been her employer for seven years and that they needed to prove cause to terminate her from her position. Since MFN never applied progressive discipline, it would be hard for them to establish a for just cause grounds for termination. Although the ultimatum email is likely worthy of discipline, under the CLC, it may not be, on its own, grounds for a just cause termination. Also, under this format, Ms. Johnston could have sought termination pay in line with the common law or reinstatement with back pay.

How Suzanne Desrosiers Professional Corporation can help

Regardless of whether you are an employer or an employee, if termination is a possibility or actually occurs, you should contact an employment lawyer. For employers, we can help you determine if you have the grounds to terminate an employee and address an unjust dismissal complaint that you may receive. For employees, we can inform you of your employment law rights under the law and help you make an unjust dismissal complaint. To speak to one of our employment lawyers, please call us at 705-268-6492 or email us at info@sdlawtimmins.com.