BEVERLY SMITH v. SAMAHQUAM BAND
ADJUDICATOR: Ib S. Petersen
DECISION DATE: 19 April 2017
APPERANCES: Ms. Beverly Smith on her own behalf
Mr. Scott A. McCann on behalf of the Respondent
- By letter dated 20 December 2013, I was appointed by the Minister of Labour to hear and adjudicate the unjust dismissal complaint filed by Ms. Smith under the Canada Labour Code, R.S.C. 1985, c. L-2 (the “Code”). Ms. Smith was employed as the band Administrator for the Samahquam Band (the “Band” or the “Employer”).
- Smith’s has been outstanding for a considerable amount of time. Initially, Ms. Smith was difficult to reach. Subsequently, there were extensive email exchanges. Hearing dates were discussed. The parties engaged in settlement discussions, which resulted in some degree of agreement. At one point I was advised that the parties had reached a settlement. The parties were represented by counsel for some of the time and acted on their own at other times. The parties were often non-responsive to communications. It appeared that the parties were attempting to address alleged or perceived deficiencies in their “agreement,” and were doing so between themselves. After the Band’s current counsel became involved there were further telephone conferences, emails and communications, as well as attempts to clarify the issues between the parties and reach a settlement. Ultimately those efforts failed.
- In the result, the Band filed a jurisdictional application, requesting that I dismiss Ms. Smith’s complaint on the basis that I lack jurisdiction because she was a “manager” under the Code. The Band filed a detailed brief, with numerous documents attached in support, setting out the factual and legal basis for its position that Ms. Smith was a “manager” and, therefore, excluded from the unjust dismissal provisions of the Code.
- Smith responded by way of email and attached three documents, a “restitution agreement,” a list of alleged or perceived deficiencies in the “agreement,” and a draft agreement between the parties. Ms. Smith’s email submission did not address the Band’s submissions or the issues of “manager” status in any manner.
- On 12 April 2017, I wrote the parties indicating that Ms. Smith’s email submission did not appear to be responsive the issues or the Employer’s submission. I agreed with Ms. Smith’s desire to have the matter “concluded soon,” and told the parties that unless I received anything further by 18 April 2017, I would write the decision on the basis of the material submitted. I did not receive anything further.
- Smith’s was employed with Band as its Band Administrator from 8 November 2007, initially as the interim Band Administrator. Later she became the permanent Administrator. On or about 11 March 2013, the Band dismissed Ms. Smith from her employment. The Band alleged that Ms. Smith over a long period of time had converted Band funds to her own use, including through the use of corporate credit cards. The amount claimed was in excess of $60,000. Rather than dismissing her at that time the Band entered into an agreement with her for the repayment of the funds. The Band alleged that she failed to repay the funds as agreed. I make no findings of fact with respect to the Band’s allegations.
- The Band notes that the Code does not define “manager.” The term has been interpreted in the decisions of unjust dismissal adjudicators and courts, including, for example, Msuya v. Sundance Balloons International Ltd., 2006 FC 321, and Isaac v. Listuguj Miigmaq First Nation,  C.L.A.D. No. 287.
- The common thread in the authorities is the actual exercise of significant autonomy, discretion and authority in the conduct of the employers business. The term “manager” is given a narrow construction.
- On the facts of this case, it appears that Ms. Smith had broad, considerable and significant authority, autonomy and discretion in the performance of her position as Band Administrator. She had overall responsibility for the operation of the Band, reporting only to Chief and Council. She entered into contracts on its behalf. She had significant autonomous financial authority. She managed the workplace, directed Samahquam’s employees and had the power to hire, fire, evaluate and discipline staff. Ms. Smith was also was the Band’s highest paid employee.
- Given Ms. Smith’s lack of response, the facts are not in dispute.
- In the particular circumstances of this case, I accept that Ms. Smith was a “manager” within the meaning of s. 167(3) of the Code, and therefore excluded from Div. XIV (“unjust dismissal”).
I order that Ms. Smith’s complaint of unjust dismissal is dismissed.