A former tax administrator for the Osoyoos Indian Band was constructively dismissed and awarded two years' notice plus $50,000 in a March 19 decision. 

Melinda Nunez-Shular sued the band alleging that it had moved to replace her after she was forced to take a medical leave. 

Constructive dismissal is described as when an employer forces an employee to resign by making significant, unacceptable changes to their employment terms or creating a hostile work environment, effectively forcing them to quit. 

After six years of litigation and a 2024 trial in Vancouver, the court agreed that the band had constructively dismissed her, replacing her with the band's HR manager's sister. 

"There is no more fundamental or substantial change to the contract of employment than removing an employee from her position and replacing her with another, significantly junior, employee," wrote Justice J. Gropper in her decision.

Nunez-Shular had been employed by the band since 1999, starting as a receptionist, before getting promoted in 2004 to the executive assistant for the band's administrator, Chief, and Chief Financial Officer. 

The CFO directed her to learn about property taxation, and with the band's sponsorship, she took the first four-year program in First Nations property taxation and became one of the first certified First Nations tax administrators in Canada. 

The band appointed her to the position in 2009, retroactively making it official in 2011 when the band passed the necessary band council resolution. 

While things seemed to be operating smoothly, in 2017 Nunez-Shular had to go on leave for emergency surgery. 

During her time away, the band began advertising for a trainee tax administrator position, without any communication with Nunez-Shular despite her at the time being head of the band's tax department. 

She was assured on her return that the position would float between the accounting and the tax departments to assist during the high activity tax time while working elsewhere. 

That, however, didn't turn out to be the case, and by 2018 she had to go on medical leave again. 

This time, when Nunez-Shular came from her leave, she was tasked with doing menial filing duties that were usually handled by summer students as part of their graduated return to work (GRTW).

She was also informed that she was no longer the band's tax administrator, but that she was a tax officer sharing the role with the newly hired employee, who happened to be the sister of the band's HR manager. 

"Ms. Lavallee香蕉视频直播檚 conduct throughout the GRTW, along with that of Ms. Baptiste and Mr. Linkevic, underscores that the view of the OIB was that Ms. Nunez-Shular was no longer the tax administrator and that she ought to be content with not returning to her position and her workstation because it was now Ms. Holmstrom香蕉视频直播檚," wrote Justice Gropper. "The pretense that Ms. Nunez-Shular香蕉视频直播檚 capabilities were not sufficient to return to her position was just that. It was never the OIB香蕉视频直播檚 intention for Ms. Nunez-Shular to return."

It was written that the band had claimed that Nunez-Shular had failed to perform adequately upon returning to work and that she had eventually quit her job. 

However, Justice Gropper noted that whether Nunez-Shular was performing her tasks appropriately or not was irrelevant, since the question was not if the OIB had fired her with cause, which was not the claim, but whether the band had constructively dismissed her. 

In addition to the demotion in title to tax officer, the splitting of her responsibilities with the junior hire and being placed in a temporary workstation without access to the tax administration database or her personal effects for several weeks, the Justice found the fact the band had awarded the position of tax administrator through a band council resolution all added up to have substantially changed the essential terms of Nunez-Shular's contract. 

In addition to awarding her 24-month notice, based on her long employment with the band, Justice Gropper also awarded an additional $50,000 in aggravated damages due to the OIB failing to act in a way that was candid, reasonable, honest or forthright. 

"As the OIB did not meet its obligation of good faith and fair dealing in the manner of dismissal, the breach must be compensated for by providing aggravated or 香蕉视频直播淲allace香蕉视频直播� damages," wrote Justice Gropper. 

Nunez-Shular was also awarded her legal costs for having been successful in her suit.