Canadian Employment Law Today

Canadian Employment Law Today | 3 Cases and Trends Canadian HR Reporter, a Thomson Reuters business 2019 Class dismissed for school board accountant School board had just cause to dismiss secretary-treasurer for poor performance and insubordination; professional status exempted him from OT pay BY BRIAN LECLAIR THE MANITOBA Labour Board has up- held an appeal of the dismissal of a school division's secretary-treasurer after ruling the employee was terminated for just cause and not entitled to overtime wages or wages in lieu of notice. e employee — referred to as S.A. — began employment as associate secretary- treasurer with the Prairie Rose School Di- vision (PRSD) in October 2014, became secretary-treasurer in December 2014, and was terminated in June 2016. e secretary treasurer's role was to be re- sponsible for the preparation, communica- tion and delivery of all aspects of the PRSD budget, purchasing of supplies and equip- ment, and supervision of staff. e position was second-in-command in the school divi- sion. e four issues under consideration in the case were: whether S.A. was a professional pursuant to s. 5 of Manitoba's Employment Standards Regulation; whether the em- ployment conditions included perform- ing "management functions primarily" and the PRSD having control over S.A.'s hours of work; whether the PRSD and S.A. had an agreement for the payment of overtime wages independent of the provisions of the Manitoba Employment Standards Code and regulations; and whether the PRSD had just cause for the termination of S.A. Professional S.A. argued that because he was a chartered public accountant, only some of the sec- tions of the code applied to him. e PRSD argued that S.A. fell squarely within s. 5 of the regulation, which notes that employers do not have to provide overtime pay to pro- fessional employees. Control over staff and work hours S.A. disputed the amount of control he had over his duties and argued his decisions required approval from either the super- intendent or the board of trustees. He was required to be at work at 8 a.m. each day and expected to attend board meetings which took place after business hours. e PRSD cited court decisions which indicated the task of the board was to review the actual role, not the role perceived by S.A., and that S.A. could rearrange his schedule when re- quired to accommodate meetings held later in the day. Overtime agreement S.A. claimed that he had discussed overtime in his first discussion with the PRSD, he didn't agree with the PRSD's position that he not be paid for overtime, and maintained a record of his overtime hours, though he had not actually submitted them for approval. e PRSD argued that any documents S.A. brought forward after the termination were created by him for his benefit, and there was no evidence in support of this claim. Just cause S.A. contended that he was neither pro- gressively disciplined nor provided an op- portunity to discuss his job performance and received praise from employees and colleagues. e PRSD felt there was a de- terioration of his job performance, he was unable to meet clearly-defined objectives and deadlines, and that he was advised of these deficiencies and given opportunities to improve. In addition, the PRSD claimed S.A. had been involved in disrespectful and insubordinate behaviour in the workplace. In terms of S.A. being a professional, the board interpreted s. 5 of the regulation to mean that the employee is employed as a professional using his specialized knowl- edge and professional judgment, not neces- sarily exclusively performing the activities of the profession. e question is more wheth- er the employee is qualified to practice and is employed in a profession, and the board ruled that S.A. was. Job duties that included some activities not directly related to his profession did not disqualify him from be- having in a professional capacity. Hence, he was not entitled to overtime pay pursuant to the provisions of the code. e board was also satisfied that S.A. was performing management functions primar- ily. It reviewed the totality of the evidence relating to the duties of the position assigned to him and found that the job description was an accurate reflection of the duties, re- sponsibilities, and expectations of the role of the secretary-treasurer. He was in a statuto- rily-mandated position within the PRSD, as a senior administrator responsible for over- sight of the organization, making spending decisions and participating in collective bargaining negotiations that the PRSD was largely bound to support. In addition, since S.A's earnings met a minimum threshold of twice the industry average, the code also mandated that he was exempt from over- time pay. Further, the board found no evidence that the PRSD had ever agreed to pay S.A. over- time pay under any circumstances, as the only documentation was provided by S.A. and he didn't submit any claim for overtime hours until after he was terminated. S.A. wil- fully failed to sign the employment contract because it did not contain any overtime pro- vision, but yet did not raise the issue until it was clear his termination was imminent, said the board. As to just cause, the case law on this point demonstrated that in order to establish sum- mary dismissal, the employer must demon- strate not just mere dissatisfaction with the employee's performance, but that the em- ployee was advised of the level or standard of performance expected and provided clear instructions on how to attain the desired standard along with an opportunity to do so. Once established, the employer must de- termine that the employee was incapable of meeting the standard. While the evidence showed that S.A. spent considerable time at work, he could not provide any reasonable explanation why he could not complete the work within the mandated timelines. ere was no evi- dence that additional responsibilities were added to the job than was expected from the previous secretary-treasurer, and in fact S.A. had a team which supported the work that he was to complete, to whom he could assign tasks. e board was further concerned S.A. did not advise or provide explanations to either the PRSD or the board of trustees on his inability to deliver on the required tasks, or provide informa- tion about difficulties in completing tasks, despite having the opportunity to do so. In fact, he seldom took any accountabil- ity for his failures, often deflecting blame on his office staff, the PRSD, or the board of trustees, and responded to constructive criticism in a self-serving and potentially insubordinate fashion. e board was satisfied that the PRSD demonstrated that termination of employ- ment was a proportional response and war- ranted in the circumstances. It further con- cluded that S.A. was not entitled to wages in lieu of notice. e appeal was dismissed without costs. For more information see: • S.A. and Prairie Rose School Division, Re, 2018 CarswellMan 534 (Man. Lab. Bd.). The board was satisified the employee was performing primarily management functions

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