Not-so-super superintendent?

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Many high-rise condominiums have superintendents or “supers”. In some condominiums the duties of the super are limited to basic maintenance obligations. In others the super is more like superman, with duties ranging from handyman to complaints investigator.

Sometimes the super isn’t so super. The first step when a relationship isn’t working should be to discuss it with the other party. The same is true for employees. Regular performance evaluations are a good way to do this. The condominium and super can discuss the expectations, the performance, and areas for improvement. The super can raise issues that might be interfering with his performance, like a resident who takes up all of his time. If the super’s performance deteriorates between performance reviews, it might be necessary to have additional meetings, followed up with letters. If the performance of the super does not improve the board should consider disciplinary action. 

Sometimes a relationship just doesn’t work. Before ending a relationship with a super the board should consider: Is the super an employee or contractor? In making this determination the courts will look at the degree of control exercised by the board over the super, who owns the tools and equipment required for the job, if there is a chance of profit or risk of loss by the super, and the level of integration between the super’s job and the condominium’s business. Most supers are employees, but it is possible that a super could be a contractor so boards should talk to a lawyer before ending the relationship with their super.

Another consideration is the type of employment situation. Is the super part of a union? Does he have a personal employment contract? Again, different considerations will apply depending upon the answers above. For the purposes of the rest of this post I’m going to assume that the super is a non-unionized employee.

Termination

There are a few types of termination that might be possible with a not-so-super super. Termination for just cause requires a serious breach of the super’s duties. Termination for cause might be possible if there is a long history of continuing breaches, but the condominium must have disciplined the super with increasingly severe punishments and given notice that one more breach would result in termination before this is an option. For these reasons, it is pretty rare for termination with cause to be justified so one of the other methods is usually used by employers.

Termination with notice is more common than termination for just cause. With termination with notice an employee is given notice by the employer that his job has been terminated. The employee is obligated to continue to work at the standard expected pursuant to any employment agreement. The amount of notice due under the Employment Standards Act (the “ESA”) depends primarily upon the length of service, but additional notice may be required because of common law principles. The employment contract may limit the amount of notice required to the ESA amount if the agreement is clearly drafted. The main disadvantage with termination with notice is that the performance of some employees will worsen once they know that they have been terminated. If performance is the reason for the termination a better option may be termination with pay to avoid further deterioration in the super’s performance.

Termination with pay in lieu of notice requires the employer to provide compensation to the employee for termination instead of providing the required notice of termination. The employee does not work up to the termination date, but instead is provided compensation up to the termination date. The amount of pay is determined based upon the ESA and common law principles like under termination with notice.

Before terminating any employee, including a not-so-super super, the board should discuss it with the condominium’s lawyer. The last thing the board wants is a wrongful dismissal claim or human rights complaint against the condominium. The lawyer can assist with determining the most appropriate method of termination, preparing the termination letter, meeting with the super, preparing the record of employment (ROE), calculating the appropriate notice or pay, and assisting with various other obligations that must be satisfied by the condominium.

Other Considerations

The super must hand over any property belonging to the condominium, including keys, equipment, and records. The condominium should consider taking steps to safeguard against improper access by the terminated super by changing the locks or passwords used to gain access to the building, computers, or other property belonging to the condominium.

The owners should be notified immediately of any changes in the super. The notice should describe the termination date, if not immediately. The notice should also explain how issues are to be addressed in the interim if a new super has not been hired to replace the old one. For instance, should the owners contact the property manager for all issues, or is there a director assuming some of the duties assigned to the super? The board does not want the super to be the one to inform the owners of the termination as his or her version is usually different than the one the condominium would tell.

Another consideration when firing a super is the super’s suite. Some supers are provided with a suite to live in as part of their compensation package. If this is the case, the super must vacate the suite within one week of termination according to the Residential Tenancies Act. The condominium may agree upon a longer period of time, but at a minimum it must provide the super with one week to vacate the suite.

The Future for Supers

Because of the complexities and possible liabilities associated with employee supers, many condominiums are replacing their supers with independent contractors. They hire a cleaning company to clean the building, a general contractor to perform maintenance, and various others to take on all of the tasks previously assigned to the super. This gives the condominium more flexibility to add or remove contractors as demands change, but it also limits obligations for notice of termination and the other liabilities associated with employee supers.

What about the super’s suite? The suite could be leased. If it is a unit is could be sold. If the suite is part of the common elements it could be converted into a unit and then sold. Each of these options requires notice to the owners and in most cases the approval of the owners will be required. For instance, to convert a common element suite to a unit so it can be sold the declaration would need to be amended, which would require 90% of the owners to consent in writing.  Not an easy task, but it is possible.