Employment Law Today
Published by Thomson Reuters Canada Ltd. I www.employmentlawtoday.com
CURRENT NEWS AND PRACTICAL ADVICE FOR EMPLOYERS
ISSUE NO. 553 • MARCH 24, 2010
Managerial employee gets overtime pay
Executive chef who filled in on non-managerial duties gets overtime under little-used provision
IN ONTARIO, an employer’s
statutory obligation to pay for
overtime is triggered when an
employee works more than 44
hours in a week. The right to
overtime pay applies to all
employees except those whose
“work is supervisory or managerial in character and who
may perform non-supervisory
or non-managerial tasks on an
irregular or exceptional basis,”
according to employment standards legislation. The overtime
exemption for managers may
be applicable even if an
employee is not exclusively performing managerial or supervisory work. However, section
22(9) of the Ontario Employment Standards Act, 2000
(ESA), does allow overtime to
be paid to managerial employees who find themselves in a
situation where they spend 50
per cent or more of their time
during a work week performing
non-managerial tasks, but this
provision hasn’t come into play
until just recently.
In Glendale Golf and Country Club Limited. v. Sanago
and Director of Employment
Standards, Massimo Sanago
was employed as an executive
chef. The fundamental character of his position was managerial, but a short-staffed kitchen
required him to perform nonmanagerial duties such as line
cooking. Ontario legislation
considers
non-managerial
tasks performed by managerial
employees to be performed for
the employer, regardless of
whether
the
employer
requested or permitted it. Since
Sanago was a managerial
employee who was forced to
perform non-managerial tasks,
the Ontario Labour Relations
Board had to determine
whether those tasks were performed on an “irregular” or
“exceptional” basis.
The evidence established
that, over a period of two
months, Sanago spent 55 per
cent of all hours worked performing non-managerial line
cooking duties. Since this crisis
in the kitchen — brought on by
quitting or firings of about onehalf of the kitchen staff —
lasted for two months before a
state of normalcy returned, the
board found it was “out of the
ordinary” circumstances and an
“exceptional” event. Normally,
Sanago’s claim for overtime
would have been denied, but the
board determined that, despite
his position, Sanago was entitled to overtime pay for those
weeks where he spent more
than one-half of his time performing non-managerial tasks.
Having acknowledged there
were no prior decisions that
have interpreted section 22(9)
of the ESA, the board presented the parties with an
opportunity to provide submissions with respect to its applicability. Both the employer and
the Ministry of Labour claimed
section 22(9) of the ESA did not
apply to Sanago. The country
club argued the executive chef
position was 100 per cent managerial and, as such, Sanago
was not requested to perform
duties of any other kind. The
ministry argued the executive
chef position did not qualify for
the overtime exemption, so
there was no work performed
that was exempt from the overtime provisions.
Short-staffing
caused exceptional event
However, the board concluded there was no basis, statu-
tory or otherwise, to support an
interpretation that would
exclude the managerial/supervisory exemption under section
22(9) of the ESA. The board
compared the managerial
employee status to an employee
who works for a taxi company
both as a cab driver and as a dispatcher. Working as a cab
driver, the employee would be
exempt from overtime, but
working in the office as a dispatcher, the employee would
not be. If the employee worked
more than 50 per cent of the
work week as a dispatcher, she
would be entitled to overtime
pay for all hours worked in
excess of the statutory threshold of 44 hours. There are many
jobs exempt from the overtime
provisions, including that of
executive chef, whose work is
supervisory or managerial in
character but may involve nonsupervisory or non-managerial
tasks on an irregular or exceptional basis. The board saw no
reason to distinguish the overtime exemption for a managerial/supervisory person from
other exempt jobs.
Glendale is of importance to
both managerial employees
and employers, albeit for different reasons:
For employees:
•It clarifies that if a particular
job falls within the managerial
exemption and the duties of that
employee’s job require her to
perform non-managerial tasks,
section 22(9) of the ESA applies
and the employee is entitled to
overtime pay for work performed in a work week, so long
as the non-managerial work in
that work week takes up 50 per
cent or more of the time the
employee spent working.
•It explains that if an employee
is employed in a position that
qualifies for the managerial
exemption but who spends 50
per cent or more of her time
during a work week performing the non-exempt work on an
irregular or exception basis,
section 22(9) will apply.
•It suggests that managerial/
supervisory employees might
want to document hours
worked performing non-managerial tasks in order to substantiate a claim for the
overtime pay.
For employers:
•It advises employers that once
they become aware their managerial/supervisory employees
are engaged in non-managerial
tasks they should promptly
advise them, in writing, to stop
performing such tasks, if the
employers wish to avoid claims
for overtime.
•It indicates that it would be
prudent for employers to
develop a policy requiring managerial/supervisory employees
to obtain authorization prior to
engaging in non-managerial
tasks and ensure consistent
compliance with the policy.
See Glendale Golf and Country Club Limited v. Sanago and
Director of Employment Standards (Jan. 20, 2010), John D.
Lewis — Vice-chair (Ont.
Labour Relations Bd.).
CELT
ABOUT THE AUTHOR
Nikolay Y.
Chsherbinin
Nikolay Y. Chsherbinin is an
employment lawyer at Grosman,
Grosman and Gale LLP in Toronto.
He can be reached at (416) 364-9599
or nikolayc@grosman.com.
© Copyright Thomson Reuters Canada Ltd., January 27, 2010, Toronto, Ontario, (800) 387-5164. Web site: www.employmentlawtoday.com