Canadian Employment Law Today

Canadian Employment Law Today | 3 Cases and Trends Canadian HR Reporter, a Thomson Reuters business 2019 Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog features topics such as GM's legal obligations after its plant closure, privacy in the workplace, and flu shots for employees. You can view the blog at www.employmentlawtoday.com. Team leader not a manager: Adjudicator Bank employee performed administrative duties but had no real autonomy; Unjust dismissal complaint allowed to proceed BY JEFFREY R. SMITH AN ATTEMPT by the Canadian Imperial Bank of Commerce (CIBC) to toss out a for- mer employee's unjust dismissal complaint because the employee was a manager has been defeated by an adjudicator. Kelsey Crawford was employed as a team leader with CIBC at its Halifax Contact Cen- tre, where she oversaw a team of 12 to 15 fi- nancial services representatives and ensured they met sales and service targets. When she applied for and was successfully hired into the position, the job posting for team leader indicated that duties included devel- oping and coaching team members, con- verting contacts into new sales, guiding and motivating the team to meet performance targets, manage sales, analyze data related to team performance, look for ways to im- prove best practices, and conduct meetings. e job requirements included knowledge of sales management, and abilities in coach- ing team members and leadership. e post- ing mentioned that call centre or financial industry management experience would be an asset. Normally, CIBC set sales targets for Craw- ford and other team leaders, and she would set hourly, daily, or weekly goals for the fi- nancial services representatives. Most of her day was spent working on the floor directly with the team, coaching, listening in on calls, training, and encouraging team members. Occasionally she would call clients back to resolve an issue but usually didn't take in- coming calls. While the financial services representa- tives – which were entry-level positions – reported to Crawford, Crawford reported to a senior manager. Crawford was involved in disciplining, offering overtime, carrying out performance reviews, and approving short- term leaves of absence for financial service representatives, and was part of the inter- view process for new hires. However, she had no say in work schedules, who was on her team, salaries and bonuses. On Nov. 9, 2016, CIBC terminated Craw- ford's employment. She filed an unjust dis- missal complaint under the Canada Labour Code, but CIBC objected. e bank argued that Crawford was a manager, and Division XIV of the code — relating to unjust dismiss- al — didn't apply to managers, as stipulated in s. 167(3) of the code. Crawford disagreed, arguing that her po- sition didn't fall within the meaning of "man- ager" under the code as she didn't have suf- ficient "autonomy, discretion and authority" as a team leader. She acknowledged that she had some management functions, but most of the important issues required approval from higher-ups. She was more of "a super- visor who acted as a conduit between team members and the actual decision-makers," Crawford said. Autonomy and nature of role e adjudicator noted that the code had a restrictive meaning of "manager" — while s. 167(3) said that Division XIV didn't apply to employees who are managers, s. 167(2) stat- ed that Division I — relating to industrial relations — didn't apply to "employees who are managers or superintendents or exercise management functions." ese two sections indicate the code differentiates between managers, superintendents, and those who "exercise management functions." And the latter category "are most likely to exist, how- ever, at the lower levels of management in larger organizations in which there are sev- eral distinct levels of management," said the adjudicator. e adjudicator found that it has been established that managers in the banking industry in particular often didn't have ab- solute authority and discretion, as banks are large institutions with bureaucracies. It has also been established in jurisprudence that managers "must have real decision-making authority" in matters of importance such as policy and planning, budgets, contract negotiations, hiring, firing, promotion, and discipline. As a result, it was possible for an employee to perform some managerial func- tions in the course of their job duties but still not be a manager as defined under the code, said the adjudicator. CIBC argued that "in the context of the banking industry, the primary overall con- sideration is the proportion of administra- tive duties, with the degree of autonomy as a secondary consideration." e bank added that Crawford's role was almost entirely ad- ministrative and she rarely interacted with clients with the exception of follow-up or thank-you calls. However, the adjudicator disagreed, finding that this approach was too simplistic and everything must be con- sidered in the context of the employee's cir- cumstances. e adjudicator found that the nature of Crawford's duties involved mostly training, overseeing, and evaluating financial ser- vices representatives. While her duties were mostly administrative, she was only one level removed from the entry-level employees and, due to her location on the floor of the call centre, her role was more tied to opera- tional duties than managerial positions. In addition, the adjudicator found that while Crawford had some authority over short-term leaves and performance evalua- tions — though she usually consulted with a senior manager — she wasn't the one who set salaries, made staffing decisions, or set sales targets. Crawford's role was more of a supervisor and a conduit between the entry- level employees and senior management, and the job posting only required minimal education and management experience, the adjudicator added, also pointing out that CIBC had a large number of policies and guidelines that team leaders had to follow. e adjudicator determined that Craw- ford's team leader position was not manage- rial in nature and therefore not exempt from the unjust dismissal provisions in the Canada Labour Code. As a result, Crawford's unjust dismissal complaint was allowed to proceed. For more information see: • Crawford and Canadian Imperial Bank of Commerce, Re, 2018 CarswellNat 7105 (Can. Lab. Code Adj.).

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