Aleks Kukolj

Barrister & Solicitor

Aleks is dedicated solely to the practice of employment law. He has proudly served – and continues to serve – employees across the province of British Columbia.

A recent BC Supreme Court case, Nunez-Shular v. Osoyoos Indian Band, highlights how important it is for employees to understand their rights. Ms. Nunez-Shular, a long-time employee, was awarded a remarkable 24 months of notice (equivalent to 24 months’ wages) and $50,000 in damages because the court found she had been constructively dismissed. Employees facing difficult workplace situations and hostile management regularly contemplate resignation – walking away from a toxic work environment, but also their rights and entitlements – not being aware of protections afforded to them by common law principles such as those covered in the Nunez-Shular v. Osoyoos Indian Band case. This decision also sends a clear message to employers: treat your employees fairly, or face the consequences.

Melinda Nunez-Shular worked for the Osoyoos Indian Band (OIB) for nearly two decades, starting as a receptionist and later becoming OIB’s tax administrator. Her role expanded significantly over the years due to increased property taxation responsibilities. However, workplace tensions arose following her medical leave in 2017, leading to significant changes in her work environment upon her return.

Key developments included:
• The hiring of a “tax administrator trainee” during her absence without her consultation;
• Increasing pressure from management to train the new hire, Alanea Holmstrom, despite unclear communication about the trainee’s role;
• Complaints made by Ms. Holmstrom about Ms. Nunez-Shular, which were not disclosed to her or addressed collaboratively; and
• A second medical leave in 2018 due to workplace stress, during which Ms. Nunez-Shular faced demands from Chief Clarence Louie for medical details and the return of her office key fob.

Ms. Nunez-Shular claimed constructive dismissal, arguing that the OIB’s actions fundamentally breached her employment contract by creating an untenable work environment. Under Canadian law, constructive dismissal occurs when:
• An employer unilaterally alters an essential term of the employment contract;
• The employer’s conduct demonstrates an intention to no longer be bound by the contract.

The OIB contended that Ms. Nunez-Shular voluntarily resigned and was not entitled to damages.

The court ruled in favor of Ms. Nunez-Shular, concluding that:
• She was entitled to damages, including reasonable notice and additional compensation for the emotional distress caused by the employer’s conduct;
• The OIB’s actions—particularly its handling of the trainee position and failure to address workplace tensions—amounted to constructive dismissal;
• The unilateral changes to her role and treatment during her medical leave breached essential terms of her employment.

Aggravated damages are awarded in employment law cases when an employer’s conduct during the dismissal process is particularly harsh, malicious, or insensitive, causing emotional distress to the employee. These damages are meant to compensate for the mental suffering or humiliation endured due to the employer’s actions.

In Nunez-Shular v. Osoyoos Indian Band, the court found that Ms. Nunez-Shular was entitled to aggravated damages because of the OIB’s conduct during her medical leave and subsequent dismissal. Specifically, Chief Louie’s demands for unnecessary medical details and the return of her office key fob were deemed invasive and retaliatory, exacerbating her stress during an already vulnerable time. Additionally, the OIB failed to address workplace complaints collaboratively and pressured her to train her replacement without clear communication, creating a hostile environment that directly contributed to her emotional distress. These actions collectively demonstrated insensitivity and a disregard for Ms. Nunez-Shular’s well-being, justifying the award of aggravated damages.

This case offers several important lessons for BC employees:

1. Know Your Rights During Medical Leave: Employers cannot penalize or pressure employees unfairly during or after medical leave.
2. Constructive Dismissal Protections: If your employer’s actions significantly alter your job or create a hostile work environment, you may have grounds for constructive dismissal.
3. Document Workplace Issues: Keep records of any incidents, communications, or changes that could support your case if a dispute arises.

Conclusion

The Nunez-Shular decision reinforces the importance of fair treatment and clear communication in employment relationships. For BC employees, it serves as a reminder that legal remedies are available when workplace rights are violated. For employers, it highlights the need to handle sensitive situations – like medical leaves and role transitions – with care and respect to avoid costly legal disputes.