Saturday, 16 March 2013

Who is a Manager under the Canada Labour Code?


“I want to speak to the manager!” In retail and customer service environments determining the identity of the manager can be easy: he or she is the individual in the tie instead of the golf shirt.

For the purposes of unjust dismissal complaints made under the Canada Labour Code, however, determining whether an employee is a “manager” is a little more complicated.

Why Being a Manager Matters


Unlike most workers in Ontario, employees whose employment is subject to the provisions of the Canada Labour Code, (such as those working for the federal government, banks, the airline industry, or inter-provincial trucking operations) generally have the right to make complaints of “unjust dismissal.”

"Unjust dismissal" is different from "wrongful dismissal:" (for a discussion of what wrongful dismissal is, see this blog’s post on What is Wrongful Dismissal?) an employee eligible to make a complaint of unjust dismissal can be reinstated to his or her former position, with back pay, if an adjudicator agrees that the dismissal was unjust.

In order to be eligible to make a complaint of unjust dismissal an employee must be, amongst other things, not a “manager.” (Canada Labour Code, section 167(3).)

Who is a Manager?


Although used frequently in the Canada Labour Code the term “manager” is not defined. Determining whether a worker is a manager is therefore more challenging than it may appear.

In Stacey Reginald Ball's lead textbook, Canadian Employment Law the author notes indicia that, while they might appear to make an employee a manager, have been held by adjudicators and courts of appeal not to be determinative of the situation:
  • Having the job title of manager;
  • Both the employee and employer believe the employee is a manager;
  • The work is important to the employer;
  • The employee exercises some management functions;
  • Being in charge of part of the employer’s operations;
  • Having the ability to replace employees when others are fired;
  • Having the ability to purchase some goods on behalf of the employer; and
  • Being a manager in the past if the employee is not a manager at the time of dismissal.

So, if none of those things necessarily makes an employee a “manager” what does?

Perhaps the best description of what makes an employee a manager comes from the case of Desgagne v Avalon Aviation Ltd (1981), 42 NR 337 (Fed CA), where the Federal Court of Appeal affirmed an adjudicator's holding that:
What is important in determining if an employee is a “manager” is whether, in matters of consequence to his employer, the employee has the authority to make final decisions or whether in matters of consequence he can only make recommendations to persons who possess greater authority, and who will make the final decision. Does the employee make decisions or does he provide input into the decision-making process? In matters of consequence does he recommend or does he decide?"

Still Unsure?


If after reading the above you are still unsure as to whether you or one of your workers is a “manager” it is probably best to get a personalized legal opinion tailored to your situation.

Sean Bawden, a labour and employment lawyer at Ottawa’s Kelly Santini LLP would be happy to be of service to you with respect to this issue or any other labour and employment law question.

You can reach him by email at: sbawden@kellysantini.com or by phone at 613.238.6321.

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As always, everyone’s situation is different.  The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.

Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and a trustee of the County of Carleton Law Association.


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