T-1831-95
BETWEEN:
PAT
LEONTSINI,
Applicant,
and
BUSINESS
EXPRESS INC.,
Respondent.
REASONS
FOR ORDER
NOËL J.:
Pat
Leontsini (“the applicant”) is seeking judicial review of a decision by an
adjudicator, Russel Steward, under section 242 of the Canada Labour Code. In that decision, the
adjudicator allowed the preliminary objection raised by Business Express Inc.
(“the respondent”) to his jurisdiction to adjudicate on the validity of the
applicant’s complaint. In her complaint, the applicant relied on the remedy
set out in sections 240 et seq. of the Code since she felt that
she had been unjustly dismissed by the respondent.
The
adjudicator found that he had no jurisdiction to hear the applicant’s complaint
because she was a manager within the meaning of subsection 167(3) of the Code
when she was dismissed. The applicant is challenging that decision on the
ground that it is unfounded in law and based on an erroneous finding of fact.
The
respondent is a regional airline that operates mainly in the United States but
also in eastern Canada. It employs some 1,400 employees throughout its network
of operations. Of that number, 22 are “station managers” who work in the various
airports served by the respondent. In those airports, they serve as senior
representatives responsible for local operations and customer service. In
hierarchical terms, the station managers report to one of five regional
managers, who in turn report to a vice-president in Portsmouth, New Hampshire.
The
applicant was the station manager at Dorval International Airport when she was
dismissed by the respondent on March 14, 1994. She was in charge of seven
employees. Under her supervision, they loaded and unloaded aircraft, received
and dispatched baggage, checked in passengers, drove ground vehicles, handled
ground equipment, etc. In short, they were responsible for the smooth
functioning of the respondent’s operations at Dorval.
As
described by the adjudicator, the applicant’s responsibilities included
personnel management, work scheduling, preparation of budget forecasts for
local operations, interaction with local airport authorities and the
maintenance and proper functioning of ground equipment. She also had to
prepare and submit a monthly report concerning employee hours, lost time,
overtime authorized by her, irregular flight operations, redirected baggage and
the rerouting of passengers to other airlines.
In
the course of a four-day hearing, the adjudicator heard four witnesses, namely
the applicant and three of the respondent’s employees. The witnesses called to
testify by the respondent were a vice-president, the station manager at
Toronto’s Pearson Airport and the current station manager at Dorval Airport.
After considering the testimony and reviewing the many exhibits filed during
the hearing, the adjudicator reached the following conclusion:. . . I find that Mrs. Leontsini
was accountable for her station and, in the discharge of her duties, she
exercised the necessary autonomy and authority which brought her within the
four corners of subsection 167(3) of the Code. She was a Manager and,
consequently, I am without competence to hear the complaint. . . .
The applicant has challenged this
conclusion. Her first argument is that the adjudicator confused subsections
(2) and (3) of section 167 of the Code.
According to the applicant, it has been established that the word “managers” in
subsection 167(3) has a narrow meaning and includes only those in senior
management positions. In this regard, the applicant cited the following dictum
by MacKay J. in The Island Telephone Company Limited v. Minister
of Labour,
at page 15:The word
"managers" in subsection 167(3) has been determined to have a narrow
meaning, to include only those in senior management positions, who are not
included in a collective agreement as paragraph 240(1)(b) of the Code
stipulates, and who act as administrators, having power of independent action,
autonomy and discretion. (Footnote omitted)
She
also referred to the Court of Appeal’s decision in Avalon Aviation
Ltd. v. Desgagne,
in which Heald J.A. stated the following on behalf of the Court:Section 27 [now section 167] of
the Code is the application section insofar as Part III is concerned.
Subsection 3 [now (2)] provides that Division I does not apply to or in respect
of employees “(a) who are managers or superintendents or who exercise
management functions”. Subsection 4 [now (3)] stipulates that Division V.7
[now XIV] does not apply to or in respect of employees who are “managers”. It
is to be noted that in subsection (3) [now (2)] “managers” are distinguished
from persons who “exercise management functions” and “superintendents”. I am
thus satisfied that when the word “manager” is used in section 27 [now 167] it
is not intended to include all those persons, such as Mr. Desgagne in this case
who do exercise some management functions. . . .
The
applicant also cited the Court of Appeal’s decision in Lee-Shanok v. Banca
Nazionale Del Lavoro:In my view, care must be taken in
determining whether a particular complainant is a “manager”. Section 61.5 of
the Code provides employees not covered by a collective agreement with a remedy
against unjust dismissal and the exception found in subsection 27(4)
subtracts employees who are “managers” from the body of persons enjoying that
right. Consequently, the exception should not be wielded so as to strip the
applicant of this protection simply because his job required him to exercise
the power of independent decision-making.
According
to the applicant, these decisions mean that the adjudicator could not find that
the applicant was a manager under subsection 167(3) while in the same breath
saying that she was “at the lower end of the management chain”. The applicant argued that
she cannot be both at the lower end of the management chain and a manager
within the meaning of subsection 167(3) of the Code; for my part, I can perceive
no inconsistency between the two. While as a general rule it is true that a
senior manager is more likely to have the decision-making autonomy required to
be a manager within the meaning of subsection 167(3), this does not mean that a
lower‑ranking manager cannot also have such autonomy. As noted by Stone
J.A. in Lee-Shanok:The adjudicator also found
significant the fact that the parties, apparently , may have considered the
applicant to be part of management. While he recognized that the job title
itself cannot bestow the rank of manager, he nevertheless went on to pose the
question of how the parties perceived the job. Their impressions, in my view,
are not strictly relevant to the question he had to decide. Management was
clearly at liberty to give its employees whatever titles, benefits and
privileges it wished and employees could accept them, but such trappings are
not necessarily indicative of the employee’s function. The word “manager” is a
statutory term relating to the nature of the work actually performed by the
applicant and must be construed in that light. (Emphasis added.)
Accordingly,
it is the nature of the work actually performed, rather than the employee’s
title or place in the management chain, that must be used to determine whether
he or she is a manager within the meaning of subsection 167(3). Someone who is
part of management and whose primary responsibility is in fact to manage is a
manager within the meaning of subsection 167(3), whether that person is at the
upper or lower end of the management chain.
In
the case at bar, it is agreed that the applicant was part of management, and
despite the fact that her position was a low-ranking one, there is no doubt
that the work she had to perform was managerial in nature. The adjudicator’s
decision is unequivocal in this regard. He concluded that the applicant had
the power to hire, discipline and dismiss employees, prepare operating budgets,
change staff assignments based on aircraft movements, etc. In fact, according to the
evidence accepted by the adjudicator, the applicant was the person responsible
for the respondent’s operations at Dorval and had all the managerial attributes
required for that purpose.
The
adjudicator also noted that the applicant’s decision-making authority was not
absolute and that she had to observe guidelines and was accountable for her
management. In reliance on this Court’s decision in Canadian Imperial Bank
of Commerce v. Bateman,
the adjudicator nevertheless found that the applicant had sufficient
decision-making autonomy and discretion for her to be a manager within the
meaning of subsection 167(3) of the Code. In light of the findings of
fact upon which the adjudicator’s decision was based, it is entirely consistent
with the law as it stands.
As
noted by Cullen J. in Bateman, the term “manager” is administrative
rather than operational in nature.
In Lee-Shanok, it was the absence of that administrative element that
prompted Stone J.A. to find that the mere exercise of independent
decision-making authority by the person occupying the position in issue in that
case
was not enough to exclude that person from the Code’s protection. In the case at bar,
however, as in Bateman, the applicant supervised and exercised
substantial discretion over a number of employees. Not only did she perform
the duties of her position independently, but she was in charge of and managed
the respondent’s employees at Dorval. In my view, the adjudicator was correct
to conclude that this made her a manager for the purposes of subsection
167(3). The applicant’s first argument must therefore be dismissed.
The
applicant’s second argument is that the adjudicator based his decision on an
erroneous finding of fact that he made without regard for the material before
him. More specifically, the applicant argued that the adjudicator’s decision
ignored the documentary evidence. She also restated, by way of affidavit, what
she considered to be her testimony before the adjudicator, thus seeking to call
into question the accuracy of his findings of fact.
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