Claimant Not Eligible for Unjust Dismissal Under Canada Labour Code

OUTCOME: Dismissed

Reasons for decision [NAME_1], complainant, and Mohawk Council of Kahnawake, respondent . Board File: 036548-C Neutral Citation: 2026 [NAME_2] 1233 March 20, 2026 The panel of the Canada Industrial Relations Board (the Board) was composed of [NAME_3], Vice-Chairperson, sitting alone pursuant to section 14(3.1) of the Canada Labour Code (the Code ). A hearing was held on May 26 and 27, August 26, 27 and 28, September 23 and 24 and October 17, 2025. [NAME_4], for [NAME_1]; [NAME_5], for the Mohawk Council of Kahnawake.

I. Nature of the Complaint [ 1 ] On June 22, 2022, [NAME_1] (the complainant) filed a complaint of unjust dismissal pursuant to section 240(1) of Part III (Standard Hours, Wages, Vacations and Holidays) of the Code with [NAME_6] (the [NAME_7]) against his former employer, the Mohawk Council of Kahnawake (the [NAME_8] or the respondent). [ 2 ] On March 21, 2023, the [NAME_7] referred the complaint to the Board, after the complainant requested adjudication. The Board provided written notice of the referral to the parties and established timelines for them to file submissions and documents about the complaint. [ 3 ] In its submissions to the Board, the respondent asked the Board to reject the complaint because the complainant was a manager within the meaning of section 167(3) of the Code and therefore did not have standing to bring a complaint of unjust dismissal. The respondent also argued that the Board should exercise its discretion to reject the complaint pursuant to section 241.2(1)(a) of the Code because the complainant had filed an action before the Superior Court of Québec claiming wrongful dismissal. The complainant argued that he was not a true manager and that he functioned more as a team leader and coordinator without the independent authority to make decisions. [ 4 ] Based on a review of the parties’ submissions, the Board determined that it required an oral hearing to receive evidence and submissions from the parties on the preliminary issue of whether the complainant was a manager. A hearing was held on May 26 and 27, August 26, 27 and 28, September 23 and 24 and October 17, 2025. [ 5 ] This decision deals only with the preliminary issue of whether the complainant was a manager within the meaning of section 167(3) of the Code . For the reasons that follow, the Board finds that the complainant was a manager. Therefore, the unjust dismissal provisions of the Code do not apply to his employment, and the Board dismisses the complaint.

II. The Complainant’s Employment [ 6 ] The respondent is the elected Council of Chiefs that is the governing body for the Kahnawake Mohawk Territory in Quebec. There are 12 elected Chiefs on the Council of Chiefs. The respondent provides governmental, administrative and operational services in Kahnawake, a community of approximately 11,000 people. [ 7 ] The respondent’s operations are divided into several departments. These departments include administrative units responsible for strategic and organizational development, public relations, legal services, human resources, information and records management and finance and asset management. There are also the following operational departments: landfill; public works; [NAME_9]; client-based services; lands; environment; and labour office. In addition, the respondent has established a Public Safety Commission, a Justice Commission, the [NAME_10], the [COMPANY_11] and an Education Centre. [ 8 ] The complainant started working for the [NAME_8] in 1986 as a civil engineering technician. He worked in this capacity for two summers while he was a student. In 1990, the [NAME_8] hired him as an assistant - technical services, and, in 1992, he became the assistant technical services coordinator. In 1995, he was promoted to the position of [NAME_9] coordinator, and he remained in this position until he was assigned to the position of director of [NAME_9] on an interim basis in 2004. He was offered and accepted the position of director of [NAME_9] on a permanent basis in July 2005. [ 9 ] A job description was attached to the July 2005 offer of the permanent position to the complainant. According to this description, the director of [NAME_9] was responsible for “provid[ing] overall direction and guidance to [NAME_9], ensuring unit goals and objectives are realistic, attainable and compatible with the [NAME_8] and [NAME_9] strategic and operational plans.” There were four major responsibilities listed in the job description, as follows:

1. To Provide Overall Direction And Guidance to [NAME_9] At Ensuring That [NAME_9] [ADDRESS] Effectively Carried Through With. … 2. As Director Of [NAME_9], Participates in the Operations and Community Planning Divisional and Global Operations Team to Ensure An Effective Communication Network Exist Amongst All Components Within the [NAME_8]. Ensures that a Collaborative Effort Is Made In The Areas Of Operational and Community Planning, Policy and Procedural Development And Resources Management. … 3. To Direct The Effective Management Of The [NAME_9] And Operational Plan Aimed At Ensuring Optimal Use of Resources. … 4. Where Feasible, Takes On Special Assignments As Designated by the Associate Executive Director, Operations and Community Planning. [ 10 ] As the director of [NAME_9], the complainant reported to [NAME_12], who held the position of associate executive director, Operations and Community Planning, when the complainant became the director of [NAME_9]. The title of [NAME_12]’s position later changed to executive operations officer. [NAME_12]’s other direct reports were the director of environment protection, the Kahnawake labour office director, the director of lands, the director of client-based services, the director of public works and a project manager. [ 11 ] There were between 25 and 30 employees in [NAME_9], with this number increasing or decreasing depending on the number of projects being undertaken at any given time. These employees reported to one of four coordinator positions either directly or through a foreman. The director of [NAME_9] was responsible for directly supervising the four coordinator positions in [NAME_9] and for indirectly supervising all staff in the unit. The four positions that the complainant directly supervised had the titles of [NAME_9] superintendent, technical services coordinator, senior civil engineer and [NAME_9] cost analyst. [ 12 ] [NAME_9] is responsible for construction and repair projects in the community. These include water, sewage and drainage pipe installations, as well as the repair and construction of roads and community building. [ 13 ] The total annual budget for the [NAME_8] in fiscal year 2021–22 was $69,104,392.00. The total annual budget for [NAME_9] for that fiscal year was $9,020,201.00. [ 14 ] On June 2, 2022, the [NAME_8] dismissed the complainant for cause. In the letter of termination, it outlined a series of issues that had led it to conclude that the complainant had breached his fiduciary duty of diligence, prudence and honesty. It stated the following: “As a result of these serious breaches, the Mohawk Council of Kahnawake no longer has confidence in your ability to properly execute your role as the Director of [NAME_9] and have no other choice but to terminate your employment.” III. Positions of the Parties A. The Respondent [ 15 ] The respondent argued that the complainant had significant autonomy, discretion and authority in the conduct of [NAME_9] and that, given this authority, he was a manager for the purposes of section 167(3) of the Code . [ 16 ] The respondent relied on the documents filed by both parties, as well as witness testimony, to demonstrate that the complainant was a manager. Its witnesses were Chief [NAME_14], a member of the Council of Chiefs; [NAME_15], its former Director of Finance; [NAME_17], Director of Human Resources; [NAME_19], Executive Director; and Mr. [NAME_22], Director of Financial Services. [ 17 ] The respondent submitted that the complainant’s testimony was not credible given that he refused to admit to any decision-making power. It argued that he provided self-serving testimony that he tailored to the legal tests, noting that he identified that he had reviewed the relevant jurisprudence before testifying. The respondent asked the Board to prefer the evidence in the written record and the testimony given by its witnesses over the complainant’s testimony, unless his testimony was independently corroborated. [ 18 ] The respondent conceded that there were limits on the complainant’s authority. It explained that the [NAME_8] is a government entity with a system of checks and balances across the organization. It submitted that it is possible for a manager to exercise discretion and decision-making authority even if the decisions must be made within certain institutional parameters. It argued that the existence of checks and balances is necessary for good governance, but that autonomous decision-making is still possible in the context of checks and balances. [ 19 ] The respondent argued that the complainant was assigned responsibilities of financial and personnel management, which he exercised. It noted that he was responsible for preparing the annual budget for [NAME_9] and that this responsibility involved a series of decisions, including obtaining and using the input from the construction foremen and engineers in the unit. It further stressed that the annual budget for [NAME_9] was several million dollars and that the complainant had the discretion regarding the execution of this budget once it was approved. [ 20 ] The respondent noted that the complainant testified that he only made recommendations and that others made the ultimate decisions. It reviewed the evidence and submitted that there was not a single instance where someone had said no to the complainant’s recommendation. It argued that the approval at another level, whether it was [NAME_12], the human resources department, the finance department or the Council of Chiefs, was equivalent to a rubber stamping of the complainant’s recommendation. In particular, it highlighted that neither the finance department nor the Council of Chiefs had ever made changes to the complainant’s proposed budget. The respondent argued that the complainant’s recommendations were always followed, provided that they were within the applicable policy. [ 21 ] The respondent argued that the complainant had a significant role in revising and administering policies that affected [NAME_9]. In particular, it noted that he was responsible for the Water and Sanitation Policy and the Construction Tendering Policy and that he was the leader of the consultation and approval processes when these policies were revised. [ 22 ] The respondent asked the Board to find that the complainant was a manager and to dismiss the complaint for lack of jurisdiction. B. The Complainant [ 23 ] The complainant reviewed the applicable case law, noting that the word “manager” in section 167(3) of the Code has been narrowly interpreted to ensure that persons are not denied access to the unjust dismissal provisions of the Code . [ 24 ] The complainant argued that his duties and responsibilities did not substantially change when he was promoted from [NAME_9] coordinator to director of [NAME_9] in 2005. He submitted that he was not a manager but that he instead worked as a team leader or coordinator. [ 25 ] The complainant asked the Board to reject the testimony of the respondent’s witnesses as unreliable and irrelevant. He submitted that the witnesses had limited interaction with him and provided vague or generalized testimony without concrete examples of his performance. He argued that the Board should prefer his testimony because he was the only witness with direct knowledge of his duties. [ 26 ] The complainant argued that the position description submitted by the [NAME_8] was not an accurate reflection of his duties and responsibilities. He stated that he had no decision-making authority and that all decisions were made by [NAME_12], the human resources department or the finance department. He submitted that he could not hire or dismiss employees and that all budget decisions were made by the finance department. [ 27 ] The complainant submitted that he could only make recommendations and not decisions. He recognized that he was a low-level manager in the organization chart, but he argued that his position was not that of a manager within the meaning of section 167(3) of the Code because he had no independent decision-making authority. He submitted that Parliament did not intend to exclude low-level managers from the protection of the unjust dismissal provisions through the application of section 167(3). [ 28 ] The complainant asked the Board to dismiss the respondent’s preliminary objection and to proceed to consider the merits of his unjust dismissal complaint.

IV. Analysis and Decision [ 29 ] The Board notes that the parties submitted almost 2,000 pages of documentary evidence to support the oral testimony of the witnesses. It has examined all evidence and arguments submitted by the parties and will only summarize the elements necessary to render a decision, in accordance with the criteria applicable to the preliminary objection filed before it under the Code , without referring to each evidence and argument. A. Legal Principles [ 30 ] The provisions of the Code relating to unjust dismissal complaints are found in Division XIV of Part III of the Code . A person may file an unjust dismissal complaint pursuant to section 240(1) of the Code , which reads as follows: 240 (1) Subject to subsections (2) and 242(3.1), a person who has been dismissed and considers the dismissal to be unjust may make a complaint in writing to the Head if the employee (a) has completed 12 consecutive months of continuous employment by an employer; and (b) is not a member of a group of employees subject to a collective agreement. [ 31 ] Section 167(3) of the Code excludes “managers” from the application of the unjust dismissal provisions and reads as follows: 167 (3) Division XIV does not apply to or in respect of employees who are managers. [ 32 ] The Board summarized the applicable legal principles in Walker , 2023 [NAME_2] 1079, as follows: [ 18 ] The term “manager” is not defined in the Code . The Board has recently considered the meaning of the term as used in section 167(3) of the Code in Saunders , 2020 [NAME_2] 947, [NAME_23] , 2021 [NAME_2] 954, and [NAME_23] , 2022 [NAME_2] 1016. In these decisions, the Board reviewed the past decisions of courts and adjudicators and summarized the following principles to be applied in the assessment of whether an employee is a manager in the context of unjust dismissal complaints: • The managerial exclusion should be interpreted in a narrow and restrictive sense in order to meet the objective of Parliament to provide the protection of labour standards, including the unjust dismissal provisions, to a broad range of employees; • The analysis of whether an individual is a manager should be done on a case-by-case basis within the specific context of the workplace; • The question of whether an individual is a manager is not determined by the job title or job description but by the actual work performed; and • A manager is generally defined as a person who performs administrative functions and who has a significant degree of independent authority, autonomy and discretion in the performance of the functions. [ 19 ] The Board notes that no single factor will determine whether an individual is a manager within the meaning of section 167(3) of the Code . The analysis must be made through a consideration of the totality of the evidence and the employment circumstances as a whole in order to assess whether the individual is a manager and, therefore, not able to make a complaint of unjust dismissal under the Code . [ 33 ] The onus is on the respondent to establish on a balance of probabilities that the complainant was a manager and therefore not covered by the unjust dismissal provisions of the Code . To meet this burden, the respondent must demonstrate that, as the director of [NAME_9], the complainant performed administrative functions and had the ability and authority to make the necessary administrative decisions for [NAME_9]. B. Application to the Facts [ 34 ] As set out in the case law, the determination of whether a person is a manager within the meaning of section 167(3) of the Code involves a case-by-case assessment with specific reference to the position and the workplace context. [ 35 ] In the present complaint, the complainant was employed by the [NAME_8], which is a local government delivering services to the community of Kahnawake through many departments and units. There are many levels of supervisors and executives with different areas of responsibility across the operations. The senior executive is the executive director, who reports directly to the Council of Chiefs. [ 36 ] The [NAME_8] is governed by the elected Council of Chiefs, which approves budgets and policies for the entire organization. Through these budgets and policies, the Council of Chiefs has created rules and processes that restrict the decision-making authority of its employees, supervisors and executives. Some of the policies are organization-wide, and some have a more specific application to particular units or departments. For example, the [NAME_8]’s Budgeting Policy applies across the organization, while the Water and Sanitation Policy only applies to [NAME_9]. Nonetheless, all employees have some degree of limitation on their authority, and no position, including the executive director, has absolute authority to act. [ 37 ] The Board’s analysis will consider this context, noting the [NAME_8]’s structures, policies and procedures and the institutional limits inherent in its governance system.

1. The Relevance of the Position Title and the Organizational Chart [ 38 ] The issue of whether the complainant was a manager is not resolved by considering his position title as director of [NAME_9]. Neither the position’s title nor its rank in the organization is determinative of whether the complainant was a manager (see Saunders , 2020 [NAME_2] 947, at paragraph 34). [ 39 ] The Board notes that the complainant argues that he was not a manager because he was three levels below the Council of Chiefs and he reported to [NAME_12], who in turn reported to the executive director. The complainant submits that, although he may have held an executive position, he was not the type of senior executive who would be considered a manager because he did not report directly to the Council of Chiefs. [ 40 ] In [NAME_24] v. [COMPANY_25]. , 2006 FC 321, the Federal Court (FC) found that an adjudicator had erred when he held that the test for deciding whether an employee was a manager involved only a consideration of the employee’s job title. The FC explained its conclusion, as follows: [ 24 ] … That this was a fundamental legal error is well exemplified by the authorities which have consistently held that the job title afforded to a person has minimal, if any, relevance to whether that person is a section 167 manager. This point is made by Justice Marc No ël in Leontsini v. Business Express Inc. [1997] F.C.J. No. 26 where he stated: 11 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. (emphasis added) [ 41 ] As the director of [NAME_9], the complainant reported to [NAME_12], a senior manager, while four coordinators reported to him. He was not at the top of the management chain, nor was he at the bottom of the organizational chart. [ 42 ] The complainant’s position title and his place in the organizational chart do not establish whether he was a manager. An employee at the lower level of an organizational chart can be a manager within the meaning of section 167(3) of the Code if an analysis of their position shows that they perform administrative functions and have the authority to make and implement significant decisions.

2. Administrative Duties [ 43 ] In Saunders , the Board identified the list of administrative functions in Greyeyes v. Ahtahkakoop Cree Nation , [2003] C.L.A.D. No. 205 (QL) ( [NAME_26] ), as a useful guide in determining whether an individual was performing the duties of a manager. The list of functions was described in [NAME_26] as follows: 2 … Administrative tasks include regulating personnel matters such as hiring, firing, promotion, performance appraisal, leaves and wage allocations; planning budgets; making contracts with clients and customers; allocating expenditures for the operation of the organisation’s affairs; making decisions about the design of services and products; and generally regulating the work process. [ 44 ] Administrative duties are distinguished from duties that are operational in nature. [ 45 ] The responsibilities of the director of [NAME_9] are described in the job description that was appended to the offer of a permanent position made to the complainant in 2005. According to this job description, the complainant was responsible for providing overall direction and guidance to [NAME_9]. The job description sets out further details about his functions, including the following specific responsibilities: 1. … … • Establishes the directions and sets priorities for the departments within the unit; • Directs the activities of the [NAME_9]; • Ensures that the selection and planning of [NAME_9] properly address the needs and dynamics of the Community • Oversees the development of and approves the schedule and methodology of proposed construction projects; • Provides direction to the unit in the preparation and/or updates of the (5) year [NAME_9]; • Ensures that consistent surveillance of [NAME_9] is carried out to ensure conformity with plans, specifications and sound engineering practices. Advises Coordinator(s) of any deficiencies or irregularities and recommends corrective measures; • Ensures that project works are compliant with [NAME_8], procedures and sound contract administration practices; • Consistently assesses and adjusts the unit as required to enable it to enhance and expand its services and expertise; • Sets performance and behavior standards in the workplace. [ 46 ] The job description also provides that the complainant was responsible for directing the development of an annual expenditure plan and budget for the unit, for directly supervising four coordinators and for indirectly supervising all [NAME_9] staff. [ 47 ] The functions described in the job description are administrative tasks, not operational tasks. [ 48 ] The complainant disputed that he was responsible for the tasks set out in his job description. He stated that the tasks were either performed by technical employees within [NAME_9] or by [NAME_12] or the [NAME_8]’s human resources department. He described that he was restricted in his ability to carry out many of the assigned functions by the respondent’s policies or by the requirements to obtain approval from other executives or from the Council of Chiefs. [ 49 ] The Board is not persuaded by the complainant’s testimony about his job functions, and it prefers the evidence of his job functions set out in the documents filed by both parties. [ 50 ] In particular, the Board notes the complainant’s own descriptions of his job functions, as set out in his curriculum vitae and his performance evaluations. [ 51 ] The complainant testified that he had prepared a curriculum vitae at the request of the [COMPANY_27] for the purposes of a court case. He provided the following summary description of his role as the director of [NAME_9] on his curriculum vitae: Assesses and monitors the Community’s needs in areas of growth, development and quality of life which may impact on unit resourcing and service delivery. Ensures goals and objectives are realistic, attainable and compliment to the organization’s operational and strategic plans. Oversees that the most efficient and effective plans are conceived and implemented on a variety of small and large-scale [NAME_9] projects. [ 52 ] It is the Board’s view that, in this summary, the complainant has described that he was responsible for performing administrative duties as the director of [NAME_9]. [ 53 ] The respondent provided the complainant’s completed evaluations for several performance reviews between 2011 and 2022. The performance review form includes a section on job responsibilities and a section on objections. The responsibilities set out in the complainant’s performance review are aligned with the major job responsibilities found in the job description. In the “Responsibility” column of the job description, these responsibilities were listed as follows: - To provide overall direction and guidance to [NAME_9] in the Operations and Community Planning Divisional and Global Operations Team - To manage [NAME_9]’s annual budget & operational plan - To take on special assignments as designated by the Associate Executive Director, Operations and Community Planning [ 54 ] The complainant provided comments about his performance of each of these responsibilities. Most notably, he did not dispute that these were his assigned responsibilities in any of the performance review forms. [ 55 ] [NAME_12] identified the objectives in each of the review forms. In the 2011 – 12 performance review, in the column “Objectives,” he identified the following three objectives for the complainant: [Priority 1:] [NAME_9] are carried out according to plans and specifications ensuring projects are on time and budget [Priority 2:] Complete New Water Treatment Plant & 3,300m 3 reservoir including newly added 16” secondary raw water intake [Priority 3:] Secure additional works for [NAME_9] to ensure workers have enough work for the full year. [ 56 ] The complainant provided comments on each of these objectives in the 2011 – 12 review. With respect to the first objective, he confirmed that all projects had been completed on time and within the budget. He further reported that the water treatment plant had been completed with the additional work not included in the original scope. Finally, he commented as follows about securing additional work and revenue: $1.2 million dollars of extra work was secured for the current fiscal year. Talks with AANDC [Aboriginal Affairs and Northern Development Canada] have proved enlightening but we have yet to secure any additional revenue as of this date. Verbally a commitment was made for $600K but we still have not received any written confirmation. [ 57 ] Based on the complainant’s own comments, the Board finds that he was exercising authority for obtaining funding for [NAME_9]. [ 58 ] The Board also notes that the complainant described his achievements in the year-end review comments section of his 2021–22 review. In this section, he described the challenges experienced by [NAME_9] due to the COVID-19 pandemic and the continuation of remote work. He also noted that he had applied for funding from Indigenous Services Canada (ISC) for five different [NAME_9] projects and that funding had been granted in a total amount of 14.6 million dollars. He was the [NAME_8]’s contact person for the ISC, the primary funder for its [NAME_9] projects. He provided regular reports to the ISC and made funding requests to the ISC on behalf of the [NAME_8]. [ 59 ] In the complainant’s year-end review comment for 2021–22, he also reported staff changes in the unit during the review period, noting four retirements, two resignations and the hiring of five new employees. [ 60 ] The Board finds that the complainant’s comments in the performance evaluations demonstrate that he was performing administrative functions as the director of [NAME_9]. More specifically, the Board finds that he was responsible for the overall direction of [NAME_9] and that this responsibility included managing personnel, planning and executing budgets and projects and negotiating contracts for the unit’s work. [ 61 ] Moreover, the complainant testified that he relied on the engineers in his department to perform the day-to-day technical work because he was not qualified as an engineer. He further explained that his role was to interact with the other departments and not to engage in the technical work. This testimony confirms that he was engaged in administrative and not operational functions because the operational functions were assigned to the engineers and the construction labourers, while the overall direction of the unit, including interaction with other units, was his responsibility as the manager.

3. The Complainant’s Authority, Autonomy and Decision-Making Power [ 62 ] For an individual to be considered a manager within the meaning of section 167(3) of the Code , they must not only perform administrative duties but also have a significant degree of autonomy to make decisions on matters of importance to the employer’s operations. A manager’s autonomy does not need to be absolute and may be restricted in certain areas (see Walker ). [ 63 ] In Shek and Bank of Nova Scotia , [1996] C.L.A.D. No. 126 (QL), the adjudicator described the degree of autonomy required to be a manager as follows: 91 The Federal Court of Appeal’s interpretation of “manager” in subsection 167(3) does not limit the application of that term just to the rare owner-manager who is accountable only to him or herself, nor just to the most senior executive who is directly accountable to the owners or their board of directors, nor only to those senior executives whose administrative authority spans all aspects of their employer’s organization. An individual who manages a division, department, branch or other administrative unit of an enterprise may also be a “manager” if he or she has been given real and significant power of independent action, autonomy, and discretion in the management of that administrative unit.

Accordingly, I agree with the observation of Professor Rose in Beaudoin and Duncan (at page 29) that “… the fact that a manager is subject to some direction does not diminish his or her status as a manager within the meaning of 167(3), provided the overall control of the operation of the administrative unit remains in the hands of the said manager.” “Overall control” in this context involves having, in the words of the [NAME_28] decision, “a significant degree of autonomy in decision making and directing others, and this in regard to important decisions of policy going somewhat beyond normal day-to-day routine.” [ 64 ] The complainant argues that he did not have the authority and power to make decisions regarding [NAME_9] because he was required to seek approval in accordance with the [NAME_8]’s policies and to act within approved budgets in making decisions. He submits that he was a messenger between the unit and more senior executives who made the actual decisions. [ 65 ] The Board finds that the complainant’s description of the nature of his decision-making authority is not supported by the evidence, which instead shows that he had and exercised a significant degree of autonomy in his decisions about [NAME_9]. His authority was exercised in financial management, human resource management and the revision of the [NAME_8]’s policies. a. Financial Management [ 66 ] The complainant had decision-making authority regarding the planning and execution of the annual budget for [NAME_9]. He argued that he was not responsible for the budget but that he instead prepared it based on the input of the engineers in his team. He described his tasks as clerical only because he merely responded to the expertise and the input of the engineers and then communicated the budget for review and approval to the director of finance and ultimately to the Council of Chiefs. [ 67 ] The Board finds that the complainant’s description of relying on input from the engineers is consistent with the fact that he was responsible for preparing and planning the budget. He obtained the input and expertise from members of his team and then executed the duty of preparing and planning the annual budget based on this input. He had the decision-making authority to prepare and plan the budget, and he was the person with ultimate responsibility for it. [ 68 ] The process and responsibility of preparing a unit’s annual budget is described in the [NAME_8]’s Budgeting Policy. In the following excerpt from the policy, the [NAME_8] specifically acknowledges that the activity of developing a budget may be delegated to other employees in a unit but that the unit director, such as the complainant, is responsible for the budget: Once a detailed primary and secondary budget is prepared for each program, the Unit Director must review and endorse all submissions to ensure they are in line with organizational standards and operational plans. The Unit Director reserves the right to modify proposed budgets as per Unit plans and objectives. The Unit Director has the ultimate responsibility to ensure budget submissions for their Units are reflective of Program needs and are submitted as per established deadlines. Even if the activity of developing the budget is delegated to Program Managers, the Unit Director is held accountable for each budget’s content and accuracy. Each Unit Director must be able to explain the proposed expenses and put forth the program requirements during the approval process. Once the budgets have been finalized by the Unit Directors and Program Managers, the Director of Financial Services will review all budget submissions and create related worksheets required to calculate overall needs for the coming fiscal year. [ 69 ] [NAME_16] explained the review and approval process for the respondent’s annual budget. She stated that the complainant prepared the budget for his unit and submitted it to her for review. She would review the budget, but, according to her testimony, she made no changes to [NAME_9]’s budget during the ten years she had reviewed it. She also testified that the complainant determined that $100,000.00 would be included in his budget as uncommitted funds. He made a presentation to the Council of Chiefs regarding his annual budget in a special session to answer questions and review the projects for the upcoming year. Ultimately, [NAME_16] would present the global budget for all the [NAME_8]’s activities to the Council of Chiefs for each fiscal year. She testified that the Council of Chiefs had never made a change to the budget during her years as director of financial services. [ 70 ] The complainant implemented and executed the budget. He decided how to spend the money within the approved budget, and he approved the spending of money for the projects in the budget. [ 71 ] The complainant had and exercised the authority to sign for expenditures of up to $150,000.00 within the unit’s approved budget. In exercising his authority to spend money within his approved budget, he engaged in autonomous decision-making about significant matters in [NAME_9]. He did not need to obtain approval for any spending below $150,000.00, provided that the spending was in relation to a project or line item in the approved budget. [ 72 ] The [NAME_8] retained [NAME_29] to conduct a review of [NAME_9] in 2021. After the complainant attended an interview with the [NAME_29] representative, he sent an email on June 22, 2021, to provide further information about [NAME_9]’s budget practices. In this email, he explained that the purpose of the uncommitted fund of $100,000.00 in the annual budget was to empower the unit to continue projects when there were unforeseen issues, such as an unexpected increase in a particular cost. He further described that he had the flexibility to respond to particular situations, as needed: One last point is that if we ever do encounter a challenging situation in our field works, we have the capability to reprioritize our projects and allocate additional resources to the project needing assistance. In the rare event of a pandemic, ice storm, or swarms of locus, we have the ability to postpone a project from one fiscal year to another. We do not have projects that have immediate health implications so postponing is not an issue. A tangible example was last year when we had to postpone the start of our construction year by approximately 7 weeks. We lost over 20% of our construction year due to the pandemic and had to delay a couple of projects. [ 73 ] In this email to [NAME_29], the complainant confirmed his authority to make and execute financial decisions, within the set parameters. [ 74 ] In addition, the complainant had and exercised the authority to move money between projects in his unit’s budget. On April 25, 2019, he asked [NAME_16] to reallocate a series of expenses from one budget line to other budget lines, to bring the annual budget to a zero balance. He also provided direction to employees about which budget lines should be used for assigning their time, as part of his management and execution of the budget. He testified that he provided this direction to ensure that budget lines were not overspent and that the budget was balanced at the end of the fiscal year. In cross-examination, he confirmed that he had the authority to move expenses and time between approved projects in [NAME_9]’s budget. [ 75 ] [NAME_21] testified that the complainant had the discretion to choose the suppliers for [NAME_9] projects, provided he exercised this discretion in accordance with the [NAME_8]’s Procurement Policy. He exercised his authority to negotiate and enter into contracts with third parties on behalf of the [NAME_8] for work on [NAME_9] projects. These included a contract signed on May 21, 2019, for the supply and installation of a plumbing system and two contracts for the installation of concrete curbs. He also signed a contract on July 6, 2021, for the installation of asphalt for the total amount of $219,887.66. [ 76 ] On April 29, 2022, [NAME_30], a senior civil engineer in [NAME_9], sent a memo to the complainant about preparing plans for the rehabilitation of Route 207 in Kahnawake. He reported that the evaluation committee had reviewed proposals for the project and that, based on its review, the committee recommended that the contract be awarded to [NAME_31] at the fixed-price cost of $1,942.272.00. On May 2, 2022, the complainant responded to [NAME_30], as follows: Please accept this memo as receipt of your memo dated April 29, 2022 pertaining to the above-mentioned subject. I have reviewed the recommendation for this submission and agree with the results. Please proceed with the conclusion of a contract to secure the services of [NAME_31] as soon as possible. I also acknowledge that this project is under the cooperation agreement with the province of Quebec and that the MTQ participated within the selection process and approved the cost of said contract through an email dated April 7, 2022… [ 77 ] The complainant argued that this email exchange shows that his authority was limited and that he could only act to approve the contract based on the recommendation of the evaluation committee and the agreement of the Province of Quebec. The Board does not agree with his characterization, and it finds that the email exchange confirms his significant authority to approve and execute projects for the work in [NAME_9]. More specifically, this project involved a cost of almost two million dollars, and the complainant acted to approve it without seeking approval from [NAME_12] or the Council of Chiefs. The complainant testified that he had the authority to approve the project because [NAME_9] had followed the [NAME_8]’s Tendering Policy and the funding was coming from the Province of Quebec. Nonetheless, he had the authority to approve the contract with [NAME_31] and exercised it. [ 78 ] The complainant testified that he needed to consult with [NAME_12] regarding any issue outside the mandate granted to him by the [NAME_8]. He described the mandate as the overall responsibility to execute the [NAME_9] projects. Regardless of his need to consult, it is evident that he had a large and significant mandate granted by the [NAME_8] to make the necessary decisions for the management and execution of the [NAME_9] projects. [ 79 ] The Board finds that, from the totality of the evidence, the complainant had the authority to make the necessary decisions to prepare and manage the budget for [NAME_9], subject to the respondent’s policies and the budget approved by the Council of Chiefs. b. Human Resources Management [ 80 ] The complainant argued that he did not have significant authority related to the management of human resources because he could not make decisions without the approval of the human resources department. In particular, he highlighted that he did not have the power to hire or dismiss an employee and that these actions were taken by the human resources department. [ 81 ] From a review of the personnel documents filed by the parties, it is clear that the complainant had the authority to make decisions about personnel matters. He was the direct supervisor of four employees and the indirect supervisor of all the employees in [NAME_9]. As the supervisor, he was responsible for the day-to-day supervision and “the co-ordination of work.” He also approved leave requests, managed vacation schedules and conducted performance evaluations for his four direct reports. [ 82 ] The complainant had the authority to decide whether to start the hiring process for a position in [NAME_9]. This included the authority to decide whether to fill a vacancy after a retirement or resignation and whether to fill a vacancy through an internal promotion or an external hiring process. If he decided to initiate a hiring process, he submitted a request to the human resources department, and it would process the request. [ 83 ] [NAME_18] testified that, when a unit wished to start a hiring process, the director was required to submit a hiring form to the human resources department, which would review the form to ensure that there was a budget for the position and that the form included the appropriate signatures. She further explained that, if the unit did not have the budget for the position, the director could move money around within the budget or seek external funding. If neither of these were possibilities, the director could seek additional funds from the Council of Chiefs. After the human resources department processed the hiring request, a hiring committee would be established in accordance with the [NAME_8]’s Personnel Policy. At the end of the process, the unit director would submit a request to the human resources department to hire the successful candidate, and the department would implement or operationalize the request. [ 84 ] [NAME_33] testified that, as the director of [NAME_9], the complainant was expected to sit on all hiring committees for positions in his department and to take the leading role in making hiring decisions. [ 85 ] Accordingly, although the complainant could not implement the hiring decision and was required to follow the [NAME_8]’s Personnel Policy, he had the power of effective recommendation for hiring staff for [NAME_9]. The act of hiring was his responsibility as the manager of the unit, while the other steps in the process were operational tasks performed by the human resources department. [ 86 ] The complainant submitted a hiring request to the human resources department on April 14, 2022. He wanted to fill a vacancy created by a resignation by promoting a current employee. The human resources department responded with a request for a copy of the job description and the allotted budget number. This request and the response from the human resources department are consistent with [NAME_18]’s testimony about the hiring process. The complainant testified that he did not have the authority to promote the employee. However, the Board finds from these documents that he had the power to recommend the promotion, subject to the implementation and review of the human resources department. [ 87 ] The complainant had the authority under the Personnel Policy to discipline employees, up to and including issuing a disciplinary suspension. However, according to the Personnel Policy, the authority to dismiss an employee was restricted to the executive director or the associate executive director responsible for the employee. One employee in [NAME_9] was dismissed during the complainant’s tenure as the director of [NAME_9], and the termination letter was signed by [NAME_12], Associate Executive Director. [ 88 ] There was no evidence of the complainant disciplining an employee. However, in March 2022, he exercised his authority to implement a probationary work plan for the newly hired Cost Controlling Manager after her mid-probation review showed that her performance was below expectations. The complainant sought advice and guidance on the work plan, but he was responsible for preparing and executing it. [ 89 ] The complainant could not provide one example of a circumstance in which the human resources department or another senior executive refused to implement his recommendation regarding a personnel matter. Although he was required to follow policies and engage with the human resources department in his personnel management, this was the context for all managers at the [NAME_8]. He had significant authority regarding personnel matters and exercised that authority to direct work, manage staff time, evaluate staff and hire staff. He made decisions about personnel matters that were operationalized by the human resources department. [ 90 ] The Board also notes that the complainant was involved in creating and managing work plans for employees in the unit. On June 27, 2019, he requested a meeting with [NAME_30] and [NAME_34] to discuss the engineers’ work plans. He explained his request as follows: … I would like to try to ensure a better outcome for our new junior engineer and I think that we need a written work plan with milestones to help plan and track their development. Also, of greater importance, I would like to try and establish a mutually agreed upon long term development plan for [an employee] that is specific and focused. Our work demands draw us into many different areas daily and I would like to have a plan that help us stay the course. [ 91 ] The complainant’s engagement in work plans was an additional exercise of his authority to manage personnel in [NAME_9]. c. Policy Creation and Revision [ 92 ] The complainant was the owner and author of the [NAME_8]’s Water and Sanitation Policy and its Construction Tendering Policy. The policy documents expressly identified him as the owner and author and stated that any inquiries about the policies should be directed to him. [ 93 ] The complainant executed the consultation and approval plan for the revision of each of these policies. The revision of the Water and Sanitation Policy occurred in 2019, and the revision of the Construction Tendering Policy occurred in 2021. For each revision, the complainant was responsible for performing the initial review and revision and then for taking the steps required for review by the appropriate stakeholders. After each stakeholder review, the complainant was responsible for incorporating the feedback into the draft policy. [ 94 ] In the complainant’s testimony, he minimized his responsibility for the policies, stating that he was only responsible for coordinating the revision process and that the policies were actually drafted by the other stakeholders. His testimony is not supported by the written record. The Consultation and Approval Plan for the Water and Sanitation Policy assigned him the responsibility of reviewing the existing policy and drafting a new version. He was the chair of the Water and Sanitation Committee, which is responsible for administering the policy. It is logical that, as the committee chair and director of [NAME_9], the complainant would be responsible for revising the Water and Sanitation Policy. [ 95 ] The Board further notes that the complainant testified that he did most of the writing for the revisions of the two policies, acknowledging that he was the subject-matter expert. [ 96 ] Moreover, on February 10, 2021, the complainant sent his draft for a revised Construction Tendering Policy to [NAME_12]. In his email exchange with [NAME_12] on February 11, 2021, he provided the following explanation of his draft policy: This draft reflects heavily of existing policies found in our area. The draft was made in an effort to protect the Community and to clearly illustrate what is expected from the mandates for tendering. It is similar to many procurement policies. I realize that this is completely different from what we have but this is what is found in the industry. [ 97 ] After the complainant’s initial email exchange with [NAME_12], he implemented the consultation and approval plan for the revised policy. As of October 2021, the policy review was completed by the [NAME_8]’s unit of strategic organizational development, its legal services department and a working group, and the process for community feedback on the policy had started. According to the complainant’s testimony, the policy had not been approved before his dismissal. However, he was responsible for every step of the review process as set out in the consultation and approval plan. [ 98 ] The complainant argued that he was not a decision-maker with respect to these policies because he worked on the consultation and approval plan with other employees, while the ultimate approval of any policy came from the Council of Chiefs. Although he sought to minimize his responsibility for policies in his testimony, the Board is persuaded that he drafted and revised the Water and Sanitation Policy and the Construction Tendering Policy and that he exercised significant control and decision-making related to the policies. In the [NAME_8]’s structure, the Council of Chiefs approves policies because it is the elected government. However, the complainant recommended approval based on his consultation and approval plan, which empowered him with significant authority regarding the policies that affected [NAME_9]. [ 99 ] The Board finds that the complainant had significant decision-making powers and authority with respect to financial management, personnel administration and policies on behalf of the [NAME_8]. These are important subject matters related to the administration of [NAME_9] with a significant impact on the respondent’s operations, particularly given that [NAME_9] had an annual budget of several million dollars and was responsible for construction and repair projects throughout the community. [NAME_9]’s annual budget was more than ten percent of the [NAME_8]’s annual budget.

Accordingly, the complainant was empowered to make decisions related to a significant portion of the [NAME_8]’s annual expenditures. [ 100 ] The complainant’s authority was not absolute because it was restricted by the [NAME_8]’s policies or subject to review and approval by [NAME_12]. These limits on his authority were firmly established as part of the [NAME_8]’s structures and applied across its units and departments. The Board is not persuaded that these limits diminished the complainant’s status as a manager. From a review of all the evidence, it concludes that the complainant had overall control of the administration of [NAME_9], within the context of the [NAME_8]’s policies and procedures that applied as limits across the entire organization.

V. Conclusion [ 101 ] For all these reasons, the Board finds that the respondent has met its onus of demonstrating that the complainant was employed as a manager within the meaning of section 167(3) of the Code . As director of [NAME_9], he performed administrative tasks and exercised significant authority and independent decision-making regarding the operation of [NAME_9] and the policies directly affecting its projects. [ 102 ] The Board has no jurisdiction to consider the unjust dismissal complaint, because the complainant was a manager within the meaning of section 167(3) of the Code . Therefore, the complaint is dismissed. ____________________ [NAME_3]-Chairperson