Any person in Ontario who is an employee is subject to the Employment Standards Act 2000, which dictates the basic legal standard that must be satisfied about such employees. The ESA dictates the minimum wages that must be paid to every employee in Ontario and also includes guidance concerning payment of termination and severance monies, notice to be given to a terminated employee and entitlement to holidays and vacation pay, to name just a few.
Importantly, the ESA also includes provisions that govern how and when overtime must be paid to an employee. Entitlement to overtime is dependent upon a number of factors, so not every employee is entitled to receive such payment.
Disputes concerning whether a particular employee’s rights under the ESA have been violated are resolved by the Employment Standards Tribunal. The Tribunal is charged with interpreting and applying the ESA to ensure that employees and employers honour their responsibilities under it.
Employee Seeks Overtime Pay in Complaint Before Employment Standards Tribunal
The case of John Sinnott v Prodigy Gold Inc. o/a Argonaut Gold involved a complaint by the employee that the employer had engaged in multiple violations of the ESA in that it had required him to work more than the daily/weekly maximum hours dictated by section 17(1) of the ESA and further, that it had violated section 22(1) of the ESA in failing to pay him overtime for the excess hours worked.
The employee’s original complaint to an Employment Standards Officer was rejected, so the employee filed an application for review before the Employment Standards Tribunal.
The Nature of the Employee’s Work
The tribunal spent significant time reviewing the evidence offered in this case and noted that the employee had worked for the company for two years pursuant to a series of written employment contracts. The contracts denoted the employee as the company’s ‘Construction Superintendent’, although other documents indicated the employee held the position of ‘Area Manager’.
The parties agreed that the employee had never been responsible, during his tenure with the company, for managing any company employees. However, his duties included ensuring that contractors hired to work on various job sites followed all applicable plans and had access to whatever tools and equipment needed to perform their jobs. In simple terms, the employee effectively oversaw operations on the employer’s job sites, ensuring that contractors performed work on time and to specification and that all health and safety standards were observed, amongst other duties. The employee was also responsible for submitting a daily report at the end of his shift and signing various inspection forms on the company’s behalf.
The Laws Applicable to Overtime Pay
As noted above, entitlement to and payment of overtime are governed by sections 17 and 22 of the ESA. Section 17 dictates that no employer may require or allow any employee to work more than 8 hours in a workday or more than 48 hours per week. Section 22 states that any employee who works more than 44 hours in a single workweek is entitled to payment of overtime for every hour in excess of 44 hours worked.
Importantly, there are exceptions to these provisions. Specifically, Regulation 285/01, Exemptions, Special Rules and Establishment of Minimum Wage provides, in sections 4(1)(b) and 8 thereof, that the overtime rights and entitlements dictated by sections 17 and 22 of the ESA are inapplicable to “a person whose work is supervisory or managerial in character and who may perform non-supervisory or non-managerial tasks on an irregular or exceptional basis.”
In other words, a person employed in a managerial or supervisory capacity is not entitled to the protections and rights afforded by sections 17 and 22 of the ESA concerning overtime.
In determining who constitutes a manager of an employer, the Tribunal considers the following five criteria:
- Does the employee in question have any supervisory responsibility of other employees?
- Does the employee in question have the power and authority to hire, discipline or terminate employees?
- Is the employee in question imbued with the authority to make decisions on behalf of the employer company?
- Is the employee in question imbued with the authority to exercise independent judgment in respect of the managerial affairs of the employer?
- Does the employee question perform a leadership or administrative role as opposed to an operational role for the employer?
Is There Any Evidence that the Employee in Question was a Manager?
In this case, the employee maintained that he was not working in a managerial or supervisory capacity and that his job simply entailed “witnessing” other people perform work. He contended that he simply showed up at job sites on the dates in question and watched contractors carry out their duties, but he did not engage in managerial work.
The Tribunal noted that precedent decisions supported the conclusion that:
“in the construction industry, work may be characterized as managerial in nature to the extent an individual has general oversight of the work performed on a construction project and can exercise independent judgment and discretion on behalf of a project owner or general contractor.”
The Tribunal also noted that the employee, as one of only two nightshift Area Managers of the employer at the job site in question, certainly performed work of a supervisory or managerial nature, in that he was vested with the authority to stop work at the job site, to issue directions to the contractors concerning the work they were undertaking, and to order that work recommence. Furthermore, the employee had signed many documents on behalf of the employer, and he was empowered to engage contractors to undertake work at the site and invoice the employer for the same. In the view of the Tribunal, the employee exerted “considerable authority and control over the site and contractors on it during his scheduled shifts.”
Was the Employee a Manager or Supervisor?
As a result, the Tribunal was satisfied that the employee had effectively acted as the employer’s representative on job sites. As the fact that an employee did not have direct supervisory authority over any workers is not determinative of whether that employee can be categorized as a manager, so the fact that the employee, in this case, did not exercise authority over any of the employer’s other employees, was not material to the Tribunal’s conclusion that he was, nevertheless, acting in a managerial capacity.
In particular, the Tribunal noted that the employee acted in a managerial capacity as defined by precedent law, engaged in various supervisory activities, and was empowered to oversee various projects on behalf of the employer.
Given that the Tribunal found that the employee was acting in a managerial capacity, he was not entitled to overtime payment for hours worked more than 44 per week.
Toronto Employment Lawyer Advising on Employment Standards Claims
If you need legal counsel to assist you with an employment standards claim, you are fortunate to have found the Haynes Law Firm. From our downtown Toronto, Ontario offices, the Haynes Law Firm is proud to provide shrewd, knowledgeable legal advice in all legal disputes.
Contact us today, either online or via telephone at (416) 593-2731, and one of our friendly staff will be pleased to schedule a confidential consultation to help you resolve your legal dispute.
