A recent Ontario Labour Relations Board decision found that an
Executive Chef, who was hired into what was intended to be an
entirely managerial and supervisory role, was entitled to be paid
almost $10,000 of overtime pay for weeks worked where his
non-managerial and non-supervisory tasks took up more than 50% of
his working time, despite the fact that he was otherwise exempt
This case was an appeal by an employer, Glendale Golf and
Country Club Limited, of an order requiring Glendale to pay $10,000
to one of its former employees, Massimo Sanago, for overtime and
associated vacation pay.
Sanago was hired as the Executive Chef at Glendale, a position
that was intended to be almost entirely managerial and supervisory.
However, due to the fact that almost half of the kitchen staff quit
or was terminated during Sanago's first two weeks of work,
Sanago spent much of the first few months of his employment at
Glendale working as a line cook. Based on records he kept during
the period, Sanago spent more than 55% of this time working as a
cook, rather than as a supervisor. When Sanago resigned, he claimed
that he should have been paid overtime pay for the extra hours he
worked during those months.
Glendale argued that, because his position was intended to be
managerial and supervisory in nature, Sanago was exempt from
receiving overtime pay under the Employment Standards Act,
2000 (the ESA). Despite this position, Glendale
gave Sanago a gratuitous bonus of $5,000 before he resigned in
recognition of his hard work during the busy first months of his
Under the ESA, a managerial employee is exempt from being paid
overtime if the character of the employee's work is managerial
or supervisory. A manager may perform non-managerial tasks
and still fall under the exemption from overtime if he or she
performs non-managerial or non-supervisory tasks, provided that
such tasks are only performed on an irregular or exceptional
Managerial Character of the Work
The Board explained that the managerial exemption from overtime
can apply even if the employee sometimes performs non-managerial or
non-supervisory work, as long as the "essential
character" of the work remains managerial or supervisory. In
this case, the fact that Sanago performed line cooking duties did
not, in the Board's opinion, alter the character of his
position as managerial/supervisory.
Frequency and Regularity of Non-Managerial
The Board went on to consider whether the non-managerial tasks
performed by Sanago were performed on an irregular or exceptional
basis. While it was clear that Sanago's cooking duties were
relatively regular during the first two months of his employment,
the Board found that this work was performed on an
"exceptional basis" due to the exceptional circumstances
that arose during his first few months of employment at Glendale.
He therefore still fell within language of the overtime
Multiple Types of Work
The Board then went on to consider whether Section 22(9) of the
ESA applied. Section 22(9) essentially provides that an employee
who is exempt from overtime may be entitled to receive overtime pay
for all overtime hours worked in a week where the employee spends
more than half of his time doing work that is not exempt from
overtime. According to the Board's analysis, there were five
weeks during which Sanago spent more than half his time acting as a
line cook rather than doing managerial/supervisory tasks. Thus,
Sanago was entitled to be paid overtime for those weeks in the
amount of $9,443.22. The $5,000 bonus that was paid to Sanago at
the time was deducted from this amount, however, because it was
intended as compensation for extra hours worked.
Employers should keep an eye on the types of tasks that their
managers and supervisors are performing while at work. For weeks
when a managers' supervisory or managerial activities account
for less than half of the hours spent at work, those employees
should be paid overtime.
In addition, employers should be cautious and ensure that
non-managerial and non-supervisory tasks are only performed by
managers on an irregular or exceptional basis to avoid becoming
liable for overtime to management employees pay going forward.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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