An attempt by the Canadian Imperial Bank of Commerce (CIBC) to toss out a former employee’s unjust dismissal complaint because the employee was a manager has been defeated by an adjudicator.
Kelsey Crawford was employed as a team leader with CIBC at its Halifax Contact Centre, where she oversaw a team of 12 to 15 financial services representatives and ensured they met sales and service targets. When she applied for and was successfully hired into the position, the job posting for team leader indicated that duties included developing and coaching team members, converting contacts into new sales, guiding and motivating the team to meet performance targets, manage sales, analyze data related to team performance, look for ways to improve best practices, and conduct meetings. The job requirements included knowledge of sales management, and abilities in coaching team members and leadership. The posting mentioned that call centre or financial industry management experience would be an asset.
Normally, CIBC set sales targets for Crawford and other team leaders, and she would set hourly, daily, or weekly goals for the financial services representatives. Most of her day was spent working on the floor directly with the team, coaching, listening in on calls, training, and encouraging team members. Occasionally she would call clients back to resolve an issue but usually didn’t take incoming calls.
While the financial services representatives – which were entry-level positions – reported to Crawford, Crawford reported to a senior manager. Crawford was involved in disciplining, offering overtime, carrying out performance reviews, and approving short-term leaves of absence for financial service representatives, and was part of the interview process for new hires. However, she had no say in work schedules, who was on her team, salaries and bonuses.
On Nov. 9, 2016, CIBC terminated Crawford’s employment. She filed an unjust dismissal complaint under the Canada Labour Code, but CIBC objected. The bank argued that Crawford was a manager, and Division XIV of the code — relating to unjust dismissal — didn’t apply to managers, as stipulated in s. 167(3) of the code.
Crawford disagreed, arguing that her position didn’t fall within the meaning of “manager” under the code as she didn’t have sufficient “autonomy, discretion and authority” as a team leader. She acknowledged that she had some management functions, but most of the important issues required approval from higher-ups. She was more of “a supervisor who acted as a conduit between team members and the actual decision-makers,” Crawford said.
Autonomy and nature of role
The adjudicator noted that the code had a restrictive meaning of “manager” — while s. 167(3) said that Division XIV didn’t apply to employees who are managers, s. 167(2) stated that Division I — relating to industrial relations — didn’t apply to “employees who are managers or superintendents or exercise management functions.” These two sections indicate the code differentiates between managers, superintendents, and those who “exercise management functions.” And the latter category “are most likely to exist, however, at the lower levels of management in larger organizations in which there are several distinct levels of management,” said the adjudicator.
The adjudicator found that it has been established that managers in the banking industry in particular often didn’t have absolute authority and discretion, as banks are large institutions with bureaucracies. It has also been established in jurisprudence that managers “must have real decision-making authority” in matters of importance such as policy and planning, budgets, contract negotiations, hiring, firing, promotion, and discipline. As a result, it was possible for an employee to perform some managerial functions in the course of their job duties but still not be a manager as defined under the code, said the adjudicator.
CIBC argued that “in the context of the banking industry, the primary overall consideration is the proportion of administrative duties, with the degree of autonomy as a secondary consideration.” The bank added that Crawford’s role was almost entirely administrative and she rarely interacted with clients with the exception of follow-up or thank-you calls. However, the adjudicator disagreed, finding that this approach was too simplistic and everything must be considered in the context of the employee’s circumstances.
The adjudicator found that the nature of Crawford’s duties involved mostly training, overseeing, and evaluating financial services representatives. While her duties were mostly administrative, she was only one level removed from the entry-level employees and, due to her location on the floor of the call centre, her role was more tied to operational duties than managerial positions.
In addition, the adjudicator found that while Crawford had some authority over short-term leaves and performance evaluations — though she usually consulted with a senior manager — she wasn’t the one who set salaries, made staffing decisions, or set sales targets. Crawford’s role was more of a supervisor and a conduit between the entry-level employees and senior management, and the job posting only required minimal education and management experience, the adjudicator added, also pointing out that CIBC had a large number of policies and guidelines that team leaders had to follow.
The adjudicator determined that Crawford’s team leader position was not managerial in nature and therefore not exempt from the unjust dismissal provisions in the Canada Labour Code. As a result, Crawford’s unjust dismissal complaint was allowed to proceed.
For more information see:
• Crawford and Canadian Imperial Bank of Commerce, Re, 2018 CarswellNat 7105 (Can. Lab. Code Adj.).