Manitoba bus company manager had her role reduced, but she still performed management functions that exempted her from OT pay
The co-founder of a Manitoba bus tour company saw her role and influence gradually reduced, but her position overseeing the day-to-day operation of the company still involved management functions that exempted her from any entitlement to overtime pay under the Canada Labour Code, an adjudicator has ruled.
Maisie Hicks was a bus driver in 2011 when she met Walt Morris, the owner of a group of companies called the Morris Group. They decided to start a Winnipeg-based bus tour company together and, after the company was incorporated in January 2012 as Winnipeg Exclusive Bus Tours (EBT), Hicks left her bus driver job to work with the new company as the general manager. She was responsible for managing all the company’s departments and all the staff reported to her including office staff, accounting, the dispatcher and the fixed operations manager. She reported to Morris, who, through the Morris Group, provided money to develop the business. Hicks had provided $3,000 toward the initial startup cost, but Morris provided the rest.
The company grew over the next four years and, in April 2016, Morris brought in his brother Wade to be the vice-president of the Morris Group and Hicks reported to him as well. Wade Morris had no background in the bus tour industry, so he relied upon Hicks in matters related to the bus tour company.
Hicks wasn’t required to work any set hours, but she regularly worked long hours — 12 or more per day — and often had to consult with staff from all departments on various matters of the regular operation of the business. She had overall hiring authority, but she often delegated hiring of drivers to the fixed operations manager and the dispatcher.
In August 2016, Hicks discussed the possibility of becoming a 30-per-cent shareholder in EBT, but Wade Morris told her she would have to invest $660,000 to do so. Hicks wasn’t able to pay such a sum and requested the return of her initial $3,000 investment. EBT did so and also drew up an employment contract setting out her compensation that included salary and a percentage of the profits and changed her job title to general manager, fixed operations. Hicks remained in charge of the day-to-day bus operations, but she reported more directly to Wade Morris.
In charge of day-to-day operations
Despite the change in reporting lines and job title, Hicks continued to work long hours and was the main contact of consultation for EBT staff in dispatch, transportation and bus maintenance. She also had to deal with circumstances such as driver absences, driver illnesses and bus breakdowns as part of her role in running the day-to-day business.
In March 2017, EBT was re-organized and Hicks’ role was changed to “training manager/tour operations.” She remained in charge of the dispatcher, drivers and tour operation, but the fixed operations manager, sales department and accounting department now directly reported to Wade Morris. She believed that at this point EBT was preparing to get rid of her.
Hicks’ belief was confirmed five months later in August 2017, when EBT terminated her employment. She brought a complaint for unjust dismissal under the Canada Labour Code, which an arbitrator supported and issued an award. The arbitrator found that, at the time of her dismissal, Hicks was a “middle manager” and was covered by the unjust dismissal provisions of the code. The arbitrator noted that Hicks had a different role in the early stages of EBT’s development — practically a partner with Walt Morris — but her role had changed, first to general manager of fixed operations and then to training manager/tour operations.
Hicks felt that if she was only a middle manager as determined by the arbitrator, she was entitled to compensation for all the extra hours she had worked and filed a complaint for unpaid overtime after the change in her role in August 2016. She also argued that her job responsibilities had been reduced with each re-organization to the point where by April 2017 she was no longer a manager.
An inspector with the labour program of Employment and Social Development Canada found that Hicks was not entitled to any more compensation for overtime, as she exercised management functions that exempted her from the overtime provisions in the Canada Labour Code.
Hicks appealed the decision, arguing that during the period beginning in April 2016, she was gradually being forced out of her employment and was no longer a manager. EBT argued that the inspector’s decision was appropriate, as “management-type employees” were exempt from the code’s overtime decision because they were better able to protect their own interests, and Hicks was still a manager exempt from the code’s overtime provisions.
The adjudicator noted that “there is a major distinction between the exclusion of managers from the unjust dismissal provision of the code and the exclusion of employees who are managers or who exercise management functions” and the code makes a distinction between “manager” and “management functions.”
Role reduced but still a manager
The adjudicator found that, before August 2016, Hicks was answerable only to Walt Hicks, the president and owner of Morris Group and EBT. After that month’s re-organization, she was answerable to Wade Hicks, the vice-president and executive directly involved with EBT. Following the second re-organization, Hicks no longer had the fixed operations department reporting to her — a significant change in her role and influence.
However, the adjudicator found that, after the second re-organization, Hicks continued to run the bus tour operations on a day-to-day basis, including being involved in the hiring, discipline and dismissal of drivers, setting rates, making company purchases and supervising the drivers. Though her overall position with EBT had decreased, she still exercised management functions in the operations of EBT’s business.
“[Hicks] had authority to deal with issues of the bus tour operation, which, by its nature, arose on a 24/7 basis,” the adjudicator said, noting that — even as a “middle level manager” — Hicks was still performing management functions.
As a result, the adjudicator determined that Hicks continued to perform management functions after the August 2016 re-organization and, therefore, the Canada Labour Code’s overtime exemption for managers applied to her.
For more information, see:
• Hicks and Winnipeg Exclusive Bus Tours Inc., Re (Sept. 19, 2019), Doc. YM 2727-3941 (Can. Lab. Code Adj.).
