Canadian Employment Law Today

February 26, 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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Canadian HR Reporter, 2020 Canadian Employment Law Today | 7 More Cases ground in the bus tour industry, so he relied upon Hicks in matters related to the bus tour company. Hicks wasn't required to work any set hours, but she regularly worked long hours — 12 or more per day — and often had to consult with staff from all departments on various matters of the regular operation of the business. She had overall hiring authority, but she often del - egated hiring of drivers to the fixed operations manager and the dispatcher. In August 2016, Hicks discussed the possi- bility of becoming a 30-per-cent shareholder in EBT, but Wade Morris told her she would have to invest $660,000 to do so. Hicks wasn't able to pay such a sum and requested the return of her initial $3,000 investment. EBT did so and also drew up an employment contract setting out her compensation that included salary and a percentage of the profits and changed her job title to general manager, fixed operations. Hicks remained in charge of the day-to-day bus operations, but she reported more directly to Wade Morris. In charge of day-to-day operations Despite the change in reporting lines and job title, Hicks continued to work long hours and was the main contact of consultation for EBT staff in dispatch, transportation and bus main - tenance. She also had to deal with circumstanc- es such as driver absences, driver illnesses and bus breakdowns as part of her role in running the day-to-day business. In March 2017, EBT was re-organized and Hicks' role was changed to "training manager/ tour operations." She remained in charge of the dispatcher, drivers and tour operation, but the fixed operations manager, sales depart - ment and accounting department now directly reported to Wade Morris. She believed that at this point EBT was preparing to get rid of her. Hicks' belief was confirmed five months later in August 2017, when EBT terminated her employment. She brought a complaint for un - just dismissal under the Canada Labour Code, which an arbitrator supported and issued an award. The arbitrator found that, at the time of her dismissal, Hicks was a "middle manager" and was covered by the unjust dismissal pro - visions of the code. The arbitrator noted that Hicks had a different role in the early stages of EBT's development — practically a partner with Walt Morris — but her role had changed, first to general manager of fixed operations and then to training manager/tour operations. Hicks felt that if she was only a middle man - ager as determined by the arbitrator, she was entitled to compensation for all the extra hours she had worked and filed a complaint for un- paid overtime after the change in her role in August 2016. She also argued that her job re- sponsibilities had been reduced with each re- organization to the point where by April 2017 she was no longer a manager. An inspector with the labour program of Employment and Social Development Canada found that Hicks was not entitled to any more compensation for overtime, as she exercised management functions that exempted her from the overtime provisions in the Canada Labour Code. Hicks appealed the decision, arguing that during the period beginning in April 2016, she was gradually being forced out of her employ - ment and was no longer a manager. EBT argued that the inspector's decision was appropriate, as "management-type employees" were exempt from the code's overtime decision because they were better able to protect their own interests, and Hicks was still a manager exempt from the code's overtime provisions. The adjudicator noted that "there is a major distinction between the exclusion of managers from the unjust dismissal provision of the code and the exclusion of employees who are man - agers or who exercise management functions" and the code makes a distinction between "manager" and "management functions." Role reduced but still a manager The adjudicator found that, before August 2016, Hicks was answerable only to Walt Hicks, the president and owner of Morris Group and EBT. After that month's re-organization, she was answerable to Wade Hicks, the vice-presi - dent and executive directly involved with EBT. Following the second re-organization, Hicks no longer had the fixed operations department reporting to her — a significant change in her role and influence. However, the adjudicator found that, after the second re-organization, Hicks continued to run the bus tour operations on a day-to-day basis, in - cluding being involved in the hiring, discipline and dismissal of drivers, setting rates, making company purchases and supervising the driv- ers. Though her overall position with EBT had decreased, she still exercised management func- tions in the operations of EBT's business. "[Hicks] had authority to deal with issues of the bus tour operation, which, by its nature, arose on a 24/7 basis," the adjudicator said, noting that — even as a "middle level manag - er" — Hicks was still performing management functions. As a result, the adjudicator determined that Hicks continued to perform management functions after the August 2016 re-organization and, therefore, the Canada Labour Code's over - time exemption for managers applied to her. For more information, see: • Hicks and Winnipeg Exclusive Bus Tours Inc., Re (Sept. 19, 2019), Doc. YM 2727-3941 (Can. Lab. Code Adj.). The employee remained in charge of day-to-day operations, but she reported more directly to the vice-president. « from A MANAGER on page 1 Distinction between manager, management functions CREDIT: MIKBIZ SHUTTERSTOCK

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