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 from overtime.
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 employment.
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 basis.
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 Tasks
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 exemption.
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.
Our Views
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.
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