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Canadian Employment Law Today
Feb 6, 2013

Domestic affair spills over into work

Community government employee confronted teacher about affair with husband in front of school staff and students
By Jeffrey R. Smith
    
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An employee of a First Nations community in Saskatchewan has been reinstated by an arbitrator after getting fired for confronting a teacher who she thought was having an affair with her husband, at school.

Patricia Gunville-McCallum was a social development clerk for Peter Ballantyne Cree Nation, a First Nations community based in Prince Albert, Sask. Hired in January 1998, Gunville-McCallum’s job involved meeting with clients, determining their eligibility for payments and writing cheques.

In January 2010, Gunville-McCallum became suspicious that her husband — who was the chief of Peter Ballantyne Cree Nation — was having an affair with a teacher at the community’s school, based on text messages she saw on her husband’s cellphone.

Wife’s suspicions boiled over

On Jan. 10, Gunville-McCallum told her husband of her suspicions and he denied it. Their argument continued throughout the evening and nothing happened that eased Gunville-McCallum’s suspicions. Gunville-McCallum continued to become more angry and by the next morning, she decided to confront the teacher.

Gunville-McCallum didn’t have a specific plan, but she headed out to the school. When she arrived, she went to the teacher’s classroom and saw the teacher talking to a special education assistant about a school event. There were also about 10 students between the ages of 10 and 16 in the classroom.

Gunville-McCallum overheard the teacher say she was going to Prince Albert, which Gunville-McCallum took to mean she would be meeting with her husband. Upset, Gunville-McCallum entered the classroom without waiting for the teacher to finish talking and began yelling obscenities, accusing the teacher of having an affair with her husband.

The teacher didn’t know who Gunville-McCallum was and denied the affair. Gunville-McCallum approached the teacher and hit her arm with her fist. The teacher later claimed Gunville-McCallum also threw a container of pencils at her, but Gunville-McCallum said she inadvertently knocked them off the desk. The teaching assistant left the room to get security.

The teacher and students in the next classroom heard the commotion and when she saw Gunville-McCallum yelling and swearing, she herded her students back into her classroom.

Security arrived and escorted Gunville-McCallum out of the school. Police were called and Gunville-McCallum was charged with and pleaded guilty to common assault, for which she received a conditional discharge.

The Peter Ballantyne Cree Nation council met and the vice-chief and council decided to dismiss Gunville-McCallum. The chief stayed out of the decision due to conflict of interest concerns.

Gunville-McCallum filed a complaint of unjust dismissal, claiming the termination decision was politically motivated — due to her husband’s position in the council — and the Cree Nation didn’t follow proper disciplinary procedure.

Serious misconduct warranted discipline but not dismissal

The arbitrator took note of the fact Gunville-McCallum had 12 years of service with Peter Ballantyne Cree Nation without any discipline prior to the incident at the school. She had been considered a good employee and the school altercation was “an isolated incident that was clearly provoked by the marital difficulties,” said the arbitrator.

The arbitrator also noted Gunville-McCallum sought help from her doctor and a mental health therapist following the incident. A week after the incident, she started counselling and she enrolled in an anger management program. In considering Gunville-McCallum’s employment history and her efforts to address her problems, the arbitrator found it was unlikely a similar incident would happen again.

However, the arbitrator also found Gunville-McCallum’s actions were premeditated, since she travelled to the school with the intention of having it out with the teacher. Though she may not have intended things to happen as they did, it was “a foreseeable consequence.” A verbal and physical confrontation with a teacher in front of staff and students was unacceptable misconduct that warranted discipline, said the arbitrator.

With the mitigating factors considered, however, the arbitrator found dismissal was too harsh. Though Peter Ballantyne Cree Nation argued everyone in the community was aware of the incident and the charges so it would be inappropriate to continue her employment, the community was ordered to reinstate Gunville-McCallum with a three-month unpaid suspension in place of dismissal. The employment relationship was not irreparably damaged, said the arbitrator.

Though Gunville-McCallum only applied for one job in the 18 months between her dismissal and the hearing, the arbitrator found she was unable to work for up to a year due to her recovery efforts, during which she received disability benefits. However, once her treatment was completed, she didn’t take reasonable steps to mitigate her losses. Once the suspension, time off for treatment and lack of mitigation were factored in, Peter Ballantyne Cree Nation was ordered to pay wages for the five months — equal to $19,000 — out of the two years since Gunville-McCallum’s dismissal. See Gunville-McCallum and Ballantyne, Re, 2012 CarswellNat 5046 (Can. Labour Code Adj.).
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