Photo: File photo

A former employee of the Osoyoos Indian Band has been granted a hefty settlement after successfully suing them over the circumstances of leaving her job.

In a BC Supreme Court decision on March 19, 2025, Justice Miriam Gropper ruled that Melinda Nunez-Shular has proved that the OIB had improperly replaced her while she was on stress leave from her role as tax administrator.

Nunez-Shular was awarded damages representing 24 months of notice, ostensibly equalling roughly $108,000 given her yearly salary of $54,000, plus aggravated damages of $50,000.

The OIB's argument had been that Nunez-Shular was not constructively dismissed — essentially, an indirect firing that results in an employee leaving a job due to employment circumstances — but that she quit her job and therefore was not entitled to damages.

But after losing her job in 2019, Nunez-Shular hired a lawyer who notified the OIB that she was indeed constructively dismissed. OIB counsel denied this, and litigation began.

A 2024 trial took place in Penticton. The court agreed that the Band had constructively dismissed Nunez-Shular, replacing her with the band's human resources manager's sister, Alanea Holmstrom.

Court heard that Nunez-Shular began her employment as a receptionist with the OIB on April 1, 1999.

From there, she moved up the ladder and attended Thompson Rivers University in Kamloops in a four-year program on First Nations property taxation and became certified as a First Nations tax administrator in Canada.

She was given the role of OIB First Nations tax administrator.

In 2017, Nunez-Shular unexpectedly went on medical leave for emergency surgery. When she was fully recovered, she returned to work two months later.

She then learned of a job posting in the OIB newsletter for the position of tax administrator trainee.

"No one at the OIB had discussed the posting of this new position with her before or during her medical leave of absence in 2017. Ms. Nunez-Shular found this to be unusual as postings within the tax department were discussed with her as the head of the tax department," the legal decision reads.

Nunez-Shular was later assured by the OIB chief that the new employee would be “a floater, assisting her in her busy times and the accounting department during their busy times.”

Alanea Holmstrom was hired at the end of 2017 and began training in an accounting course two to three days a week. She also spent one day a week training in the tax department with Nunez-Shular.

At this point, Nunez-Shular had held the position of tax administrator at the OIB for nine years and was noted to never have had any complaints about her competence or capabilities as a tax administrator, nor being a difficult employee.

But she was advised by doctors that increased pressure was negatively impacting her, so she went on stress leave, which she did.

Near the end of 2018, a rehabilitation consultant contacted the OIB to sort out a plan to have Nunez-Shular return to work.

Contact attempts to the OIB went unanswered from November 2018 until June 24, 2019.

When Nunez-Shular was finally arranged to come back in July 2019, she was no longer at her regular desk or had access to a computer connected to the tax database and email and a working telephone and was doing menial tasks.

At the end of August, Nunez-Shular was informed that she was no longer the band's tax administrator, but that she was a tax officer sharing the role with Holmstrom.

In September, Nunez-Shular was told that other staff were filing written complaints about her. Despite asking for the complaints, she was not given them.

After another incident at work on Sept. 27, 2019, Nunez-Shular left the office in tears and did not return. She then sought legal advice and the constructive dismissal suit began.

Justice Gropper found that the OIB's conduct had clear intention.

"The pretense that Ms. Nunez-Shular’s capabilities were not sufficient to return to her position was just that. It was never the OIB’s intention for Ms. Nunez-Shular to return."

The OIB's claim that she quit was not accepted. The evidence pointed to Nunez-Shular being constructively dismissed.

"Nunez-Shular did not have the position as tax administrator when she returned to work. 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," Gropper said.

The OIB was determined to have "engaged in conduct that is unfair and in bad faith by being untruthful, misleading and unduly insensitive," according to the legal finding.

The OIB did not respond to Castanet's request for comment.