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Employment law can prove tricky in Indigenous communities. In the case of a dispute, it's not always clear whether a band employee falls under provincial or federal jurisdiction, and the decision can vary based on several factors.

Nonetheless, it benefits employers and employees alike to get a better sense of where they stand.

“It's crucial for Indigenous employers to know which jurisdiction they fall under in the event of an employee dispute,” agrees Kimberly Thomas, a corporate lawyer and citizen of the Seneca Nation, Bear Clan. “There are key differences between being under the federal Canada Labor Code or the provincial Employment Standards Act in terms of labour standards, labour relations, human rights and other legislation, which even includes differences in termination pay and mandatory holidays.”

Moreover, employees under the Canada Labour Code can receive a remedy of reinstatement. Under such an outcome, it is possible for claimants to both receive damages and regain their employment; that is unless their employers can successfully argue that the working relationship is beyond repair or the job no longer exists.

Understanding these benefits, one can see why Indigenous employees prefer to fall under federal regulation.

In the grey

While it's important to get a handle on employment jurisdiction, the boundaries are not always clear-cut. Case law is varied and there is often no definitive ruling until a claim is argued in front of a judge or tribunal.

“Unless the dispute is actually challenged, you're never really sure which way they're going to come down on," says Thomas, noting "Increasingly, though, I've found that unless you can show a clear connection to band governance, tribunals and courts are ruling that Indigenous employees are under provincial jurisdiction."

Indeed, employees with a tangible connection to band governance have a higher chance of falling under the federal government's Canada Labour Code. This is often preferable for Indigenous employers given their historical precedent of dealing with the federal government.

As Thomas explains: “Many band employers feel like it's an intrusion by the province to have the Employment Standards Act apply to their employees when they're employed on reserve. They believe that regardless of what their employees are doing for the band, they're band employees and, as such, should be under the Canada Labour Code.”

That's not always the case, she continues. Over her years of providing counsel to Indigenous employers, Thomas has seen decisions come down in some surprising ways: "There was one case where employees worked in the Nation's Negotiation’s Office to negotiate contracts on behalf of the Nation regarding hydro-electric projects, that were held to be under provincial jurisdiction, which I found quite shocking. Then, there was another case where an administrative employee working directly for the band in an administrative capacity was held to fall under provincial jurisdiction at the tribunal level."

While the latter case was eventually overturned, a growing number of cases have been ruled to be under provincial jurisdiction.

Outside opinions

Employment law can be challenging to navigate. With few cues to take from recent case law, employers may not know where they stand until they are making their case.

Still, says Thomas, Indigenous employers and employees can benefit from working with legal professionals like herself who can draw insights from recent cases and ensure the right questions are being asked.

“What is the nature of employment? What is the function of the employer? Is employment directly linked to band governance, regulation of reserve lands, Indian status and rights connected with Indian status? These are the main factors that will determine the jurisdictional outcome in court or in front of a tribunal,” says Thomas, adding, “It can be confusing, but like anything else, the more you know in advance, the better.”

Kimberly Thomas is the owner of Kimberly Thomas Professional Corporation and Affiliated Independent Counsel with Aird & Berlis LLP, a full-service business law firm serving clients across Canada. She is based at Six Nations of the Grand River Territory. For more insight, contact Kimberly at kthomas@kimberlythomas.com or 519 445 2788.

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