Canadian Employment Law Today

Canadian Employment Law Today Canadian Employment Law Today | | 3 Cases and Trends Cases and Trends Canadian HR Reporter, 2020 A LONG-TIME employee of a B.C. First Na- tion was not wrongfully dismissed under the Canada Labour Code because his position was discontinued as a result of a legitimate business restructuring, according to an adjudicator. Bill Williams was a hereditary chief of the Seaichem Reserve, part of the Squamish Na - tion, the band that administrates the territories of Coast Salish indigenous peoples in the Van- couver area. Williams initially began working for Squamish Nation in 1970 as a recreation director. Over the years, he held various other positions including band manager, councillor, manager of a marina and council co-chairman. In June 2010, Williams started working in the new position of co-ordinator and negotiator for aboriginal rights and title in the Nation's In - tergovernmental Relations, Natural Resources and Revenue department (IRNR&R). Four years later, the position was renamed to lead nego- tiator, aboriginal rights and title. The position involved negotiating contracts with the B.C. and federal governments, but he didn't have authority to sign and finalize the agreements he negotiated. He also didn't have anyone re - porting to him. Williams also instructed counsel on land and resource negotiations and agreements, work- ing with some degree of autonomy to the point where he was seen as a member of Squamish Nation's senior management. However, the ex- tent of his independent actions led to some ten- sion with the chief and the band council, which was reflected in his performance appraisals. Business development split from title negotiations In 2018, Squamish Nation established a cor- poration to serve as its economic development agency. The corporation took over IRNR&R's responsibilities relating to the exploration, ne- gotiation and execution of business operations while the monitoring and enforcing of legal rights and title were given to a new rights and title department. As a result of this restructur- ing, four positions in the IRNR&R department, including Williams', were eliminated. Many of Williams' duties were distributed to several other individuals in the new depart- ment and the lead negotiating responsibilities were assumed by Squamish Nation's political leadership. Squamish Nation terminated Williams' em - ployment, stating in a termination letter that "this was strictly a business decision, which re- flects our goal of streamlining our operations for strategic-planning purposes." Williams filed a complaint of unjust dismiss- al under the Canada Labour Code. Squamish Nation responded by claiming there was no basis for a complaint for two reasons that made him exempt from the code's unjust dismissal protection — he was a manager and he was let go because of the discontinuance of a function. The adjudicator noted that "manager" wasn't defined in the code, so legal tests had been established by adjudicators to determine what constitutes employees who, according to the code, "are managers or superintendents or exercise management functions." These tests include factors such as the nature of the work, the administrative element of the position, impressions by others, the power to hire, fire and discipline employees, the power to make decisions and accountability for management functions. Not a manager The adjudicator found that, although others viewed Williams as a senior manager within the leadership of Squamish Nation and he played a prominent role in negotiations, he didn't have the power, autonomy or discretion to be a man - ager for the purposes of the code. He was the lead negotiator, but it was the band's leadership that had final approval on the agreements he negotiated, said the adjudicator in character- izing Williams' role as "a spokesperson, not a decision-maker." "His role and work were essential for the Na- tion's self-governance and strategic goals, but his position, work, power and authority were not administrative," said the adjudicator. "For many persons with whom Chief Williams dealt he might have been a face and a voice for the Na - tion, but he was not able to commit the Nation and all its members in enforceable agreements that might have consequences for decades." The adjudicator determined that Williams was not a manager and, therefore, was not exempt from the code's unjust dismissal pro - tections on that ground, adding that he didn't manage anyone and dealing with managers and senior persons in governments and other organizations didn't make Williams a manager. Reorganization not arbitrary However, the adjudicator noted that "an em - ployer may organize its operational structure and task assignments in the workplace" that could lead to the discontinuance of a function, as long as it is done in good faith and isn't "ar - bitrary, frivolous or dishonest." In Squamish Nation's circumstances, it was taking a new approach due to the growth of governance and business management func- tions that resulted in the reorganization and separation of business development from rights and title negotiations. The reorganiza- tion redistributed the duties that had previ- ously fallen under the responsibility of the lead negotiator position held by Williams. Although many of the functions of the posi- tion remained, the new approach meant these functions would no longer be performed al- most exclusively by one person and no single position reflected the function of the lead ne- gotiator. As a result, the lead negotiator func- tion was discontinued for legitimate business reasons, the adjudicator said. "There was nothing arbitrary, discrimina- tory, frivolous or dishonest in this good faith endeavor to improve the Nation's approach to rights and title and restructuring by separating government and business management func- tions," said the adjudicator. Since Williams was dismissed due to a dis- continuance of a function, the adjudicator determined that he was not subject to unjust dismissal protection under the Canada Labour Code. The complaint was dismissed. For more information, see: • Williams and Squamish Nation, Re, 2020 Car- swellNat 3027 (Can. Lab. Code Adj.). Worker wasn't a manager exempt from Canada Labour Code unjust dismissal protection, but his job was eliminated due to legitimate restructuring BY JEFFREY R. SMITH The new approach meant the worker's job functions would no longer be performed exclusively by one person. An unjust dismissal split in B.C. ABOUT THE AUTHOR Jeffrey R. Smith Jeffrey R. Smith is the editor of Canadian Employment Law Today. He can be reached at jeffrey.smith@keymedia.com or visit www.employmentlawtoday.com for more information.

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