Determining who falls under the legal definition of
"manager" involves a complex analysis of facts and can
affect the outcome of claims with respect to overtime pay
entitlements and the right to file a complaint under the
Canada Labour Code1. Recently, in
Canadian Imperial Bank of Commerce v.
Torre2, the Federal Court held that an employee
who was a branch manager was not actually a manager at law, but was
an employee under the Canada Labour Code. This
conclusion meant that that person could file a complaint under the
Canada Labour Code, under which only employees
(and not managers) can complain of unjust dismissal. Although the
outcome in Torre could certainly be challenged,
the decision serves as a reminder of the factors that should be
considered in determining whether a manager is, in fact, a manager
or whether he or she is simply an employee.3 Since the
word "manager" is not defined in subsection 167(3) of the
Canada Labour Code, case law has enumerated a
number of relevant factors to be considered to determine in which
cases an employee holds or does not hold a position of manager. The
following is a list of the factors and key points to consider which
are derived directly from the Torre case:
THE FUNDAMENTAL TEST
1. The fundamental test involves determining whether the person
in question has significant autonomy, discretion, and authority in
the conduct of the business. It is important to note that there is
no need for absolute autonomy and one must always analyze the
context, as well as the main tasks, roles and duties of the person.
Certain contextual factors will also play an important role, such
as the size of the organization, its business activities and the
duties of the person in the context of the business activities.
OTHER FACTORS TO CONSIDER: SUBSTANCE OVER FORM...
2. The emphasis is on the nature of the work performed rather
than on the title of the position.
3. To be considered a manager at law, one must perform
administrative duties rather than simple operational duties.
4. The legal definition of "manager" can include
people at the upper or lower end of the management chain, depending
again on the degree of independence and autonomy that the person in
question may have, and the importance of the management functions.
Remember: there is no need for absolute autonomy.
5. To be considered a manager at law, the person must be in a
position of control.
A clear distinction typically can be made between a supervisor
and a manager; however, that distinction may not always be easy to
make in practice. For example, in Torre, the branch manager was
found to play more of a supervisory role, as (1) her work was
structured and restricted by policies and directives issued by the
employer; (2) she was required to consult the employer's labour
relations and human resources department before dismissing
employees; (3) she did not have decision-making power regarding the
budget of her branch; and (4) she neither selected the initial
candidates for all hiring interviews nor did she decide on the
number of employees required for the branch.
A PERSON IS NOT A MANAGER AT LAW IF...
6. That person is merely a conduit between the employees and a
higher body who is the actual decision-maker.
7. That person makes recommendations to a higher body that
approves or disapproves his/her recommendations.
A PERSON IS MOST LIKELY A MANAGER AT LAW IF...
8. That person has the power to hire, discipline and dismiss
employees, and effectively exercises that power.
9. That person can and does prepare budgets within the
10. That person can vary staff assignments within the
What can an employer conclude from the Torre case and the
guidelines offered by it? The answer is simple: a manager by title
is not necessarily a manager under the Canada Labour Code. It is
quite clear that every situation will be decided on a case-by-case
basis. Adjudicators will not stop at job titles or descriptions;
the person's actual roles and responsibilities within the
organization are important. Ensuring that your managers by title
are considered managers at law can be difficult, but the
distinction is important in order to avoid the application of the
Canada Labour Code to such employees.
1 The Canada Labour Code sets out minimum employment
standards, and a unique unjust dismissal regime that applies only
to federally regulated employers.
2 2010 FC 105.
3 The test set out in this article pertains only to the
factors considered whether an employee is a manager for the
purposes of the Canada Labour Code. Other tests will be applied for
the purposes of determining managerial status under provincial
employment standards legislation.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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