October 25, 2021

Dear Membership,

Re: Membership Petition for a Formal Investigation into the Director of Community Services

Westbank First Nation ("WFN") Council received a petition signed by a number of Members, requesting removal of a senior member of staff (the "Petition"). The Petition alleges human rights abuses and harassment in the office, but does not provide any specific facts or instances in support of the claims. It is a serious matter for the Membership to allege such conduct and in such a public manner. However, the Petition is not the appropriate process for addressing complaints of a senior member of staff's or any WFN employee's conduct. Last week, Council discussed this matter after obtaining legal counsel to advise on the requirements of the WFN Constitution (the "Constitution") and the WFN Personnel Policy (the "Personnel Policy"). In brief, Chief and Council would like to communicate to Membership the following in relation to the Constitution, the Personnel Policy, and the legal risks and liability associated with Council engaging with the Petition:

  • a. Petitions and Complaints - petitions and complaints under the Constitution can only be submitted in specific, limited circumstances such as financial misconduct matters. The Constitution does not allow for the removal of a WFN employee by petition or complaint;
  • b. WFN Employer Obligations- as an employer, WFN must always conduct itself in a lawful and respectful manner in regard to employees, and must address complaints filed against any employee through the processes provided in the Personnel Policy. The laws are very clear that engaging in discussions relating to the conduct of any employee in a public manner, such as at a Special Membership Meeting, simply cannot be done;
  • c. Personnel Policy - The appropriate avenue to launch an employee-led complaint about the actions of any employee is pursuant to the Personnel Policy. The Personnel Policy applies to all employees including management and department heads. Employees are responsible for reporting any discrimination or workplace harassment to the Human Resources Department, who will then determine whether an investigation is warranted.
  • d. Privacy - WFN is required by law to protect the privacy of employees' personal information which includes all information about performance and conduct in the workplace. lfWFN engages in discussion about an employee's performance and conduct with a member or members of the public, including the Membership, this would leave WFN and/or individual members of Council vulnerable to a lawsuit (of which WFN would not win)
  • e. Legal and Financial Penalties - discussing employee performance and conduct in a public forum poses significant legal and financial consequences to WFN, and to individual members of Council, should Council launch and use WFN funds for an investigation that is not permitted under the Constitution. Overall, the liability of WFN as an employer engaging in such public discourse could be in the hundreds of thousands of dollars.

This is far too serious of a matter, and one which bears such significant risk to WFN, individual members of Council, as well as to the participant Membership, to not to be in strict compliance with the Constitution and the Personnel Policy. Council acknowledges the initiative of some Members seeking to have their voices heard, but recognizes the use of the Constitution in this fashion is not how it is meant to operate. In particular, the Constitution is not intended to further political agendas. As a result of this misunderstanding of the Constitution, Council is considering conducting Member Information Sessions about the Constitution and how Member engagement in the governance process can occur.

Sincerely, WESTBANK FIRST NATION CHIEF & COUNCIL