Canadian Employment Law Today

June 30, 2020

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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©2020 HAB Press Limited, a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under license by HAB Press Limited. CANADIAN EMPLOYMENT LAW TODAY is a trademark of HAB Press Limited. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST/HST#: 70318 4911 RT0001 How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE info@keymedia.com www.employmentlawtoday.com 20 Duncan St. 3rd Floor, Toronto, ON M5H 3G8 President: Tim Duce Editor: Jeffrey R. Smith Email: jeffrey.smith@keymedia.com Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: fred.crossley@keymedia.com Phone: (416) 644-8740 x 236 Marketing Co-ordinator: Keith Fulford Email: keith.fulford@keymedia.com Phone: (416) 649-9585 HAB Press Ltd. THIS EDITION of You Make the Call involves a dispute over a dismissed railway company em- ployee's status as a manager and entitlement to make an unjust dismissal claim under the Can- ada Labour Code. Steven Johnston was a supervisor of facil- ity management (FM) for Canadian National Railway (CN), a railroad and trucking company carrying freight across Canada and the U.S. with about 25,000 employees. He was promoted into the position from a unionized electrician job. The FM supervisor position was a grade 9 posi- tion on a 12-level ascending scale and was the first level of "out-of-scope" (excluded from the collective bargaining unit) positions. Its job de- scription indicated it was a lower-level manage- ment position with employees who report to it, while the position itself reported to a higher-level manager. As an FM supervisor, Johnston was respon- sible for the repair and maintenance of all the buildings and the yard in his territory, sched- uling, safety and supervision of six employees, planning of activities in the yards, supervis- ing work by external contractors, approving overtime, dealing with maintenance requests, interacting with senior management, manag- ing his cost centre budget and making busi- ness cases to hire new employees. He also could investigate and discipline employees for misconduct. If he wanted to discharge an employee, he could consult CNR's labour re- lations department and could terminate "as long as there weren't obvious reasons why he shouldn't," according to Johnston's boss, the manager of facility maintenance for CNR's Western Region. The FM supervisor position was paid by sal- ary — unionized employees were paid hourly — and was subject to a total compensation portfo- lio given to all management employees. CN terminated Johnston's employment on June 26, 2018. He filed an unjust dismissal com- plaint, arguing that he didn't have true power to act independently as most things he did required approval from higher up. CN filed a preliminary objection, countering that his role involved making decisions and managing employees and facilities, so he wasn't entitled to make such a complaint under the code, which didn't apply to employees who were managers. YOU MAKE THE CALL Was Johnston a manager? OR Was he an employee entitled to claim unjust dismissal? IF YOU SAID Johnston was an employee and was entitled to file a claim for unjust dismissal, you're right. The adjudicator noted that there are factors established in past jurisprudence to de- termine who was a manager. The guidelines to consider are: • The authority to make final decisions in mat- ters of consequence to the employer • The power to act independently and autono- mously on their own discretion • The employee's actual duties are more im- portant than their job title • The power to actually formulate company policy in important matters • The power to hire, fire and discipline subor- dinate employees • People who supervise other staff are not managers without other elements of author- ity • The power to spend the employer's money for services • The size and structure of the organization The adjudicator found that CN is a large com- pany with many employees and a complex struc- ture — there were 12 levels of management, of which Johnston was the fourth-lowest at grade 9. In addition, the FM supervisor position was the first "out-of-scope" position, meaning there were no supervisory employees between it and the unionized employees he supervised. This sug- gested the position was "more operational than administrative," said the adjudicator. The adjudicator also found that CN used the word "management" for all out-of-scope em- ployees, so neither that nor the fact Johnston received the complete compensation package were a good indication of management responsi- bilities. The job description indicated that a large chunk of responsibilities involved co-ordinating projects, performing maintenance and interact- ing with senior management — also hinting at the operational focus of the FM supervisor posi- tion, as this involved responding to requests and getting approval from upper management There was no evidence that Johnston had the autonomy to make final decisions of any con- sequence — instead, he made sure things were organized and moving along, the adjudicator said. Although he could discipline employees and suggest possible hires and fires, he couldn't do any of it without approval. The adjudicator added that, while Johnston oversaw overtime, vacations and time entries, these were controlled by the collective agreement and were more supervisory than managerial re- sponsibilities. "Johnston's work… was independent in the sense that when he was asked to do something he didn't have someone standing over his shoul- der while he obtained quotes and put together business cases, but he was not independent in the sense contemplated by the case law as indicia of an independent management decision-maker," said the adjudicator. The adjudicator found that Johnston was not a manager but was more of a "first level out-of- scope supervisor." CN's application was dis- missed and Johnston's unjust dismissal claim was allowed to proceed. For more information, see: • Johnston and Canadian National Railway, Re, 2020 CarswellNat 1097 (Can. Lab. Code Adj.). Dispute over manager status goes off the rails

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