Ontario worker exempted from OT pay due to supervisory duties

Worker supervised employees, had authority; non-supervisory duties were incidental

Ontario worker exempted from OT pay due to supervisory duties

A worker’s claim for overtime pay must fail because she performed supervisory duties that exempted her from such pay under employment standards legislation, the Ontario Labour Relations Board has ruled.

The worker was originally a purchasing agent for CDW Canada, an information technology service management company headquartered in Toronto.

In July 2017, the worker was promoted to the position of purchasing supervisor. Her salary and bonus were increased. The duties of the position included performance management, training and developing co-workers, managing vendors, monitoring daily workflow, reporting team results to management, communicating important concepts to the team, and identifying and developing training opportunities. She oversaw order processing and invoice requesting done by purchasing agents and managed between five and ten buyers.

The worker also scheduled employees and had the authority to hire them “to an extent,” she said.

According to the worker, she sometimes had to perform purchasing duties when CDW was short-staffed, at month-end, or at year-end.

Claim for overtime pay

The worker filed a claim for overtime pay under the Ontario Employment Standards Act, 2000 (ESA). However, she later replaced that claim for one for the payment of wages for all hours worked over 44 per week, after she realized that supervisors are exempt from overtime under the ESA. She claimed more than $15,000 in unpaid overtime between 2019 and 2021.

An employment standards officer determined that CDW did not owe the worker any wages. The worker appealed to the Ontario Labour Relations Board, once again seeking overtime pay. CDW maintained that the worker’s job was supervisory or managerial in character and she was paid for all work performed.

The board noted that the ESA requires employers to pay employees overtime pay for each hour of work in excess of 44 in each work week. However, Ontario Regulation 285/01 states that the overtime requirement does not apply 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.”

The board also noted that CDW had the onus of establishing that the overtime pay exemption in the regulation applied by proving that the worker’s work was supervisor or managerial in nature and any non-supervisory tasks she performed were not a regular or expected part of her job.

Although the board wasn’t bound by and findings made by the employment standards officer, it could not “completely ignore” the fact that the worker changed her claim from overtime pay to payment of wages after she realized that supervisors are exempt from overtime pay.

Nature of work

The board found that the worker’s work was managerial or supervisory in nature, noting that the overtime exception in the regulation applied to work that includes: the supervision of other employees, having the power to hire, fire or discipline employees, having the ability to make decisions on behalf of the company, exercising independent judgment in management affairs, and performing a leadership or administrative role as opposed to an operational role. The job title or description did not determine the nature of the work, the board said.

The board also found that the worker did not perform non-supervisory duties on a regular basis, as the worker didn’t provide evidence of such work that was “anything other than incidental to her duties.”

The board noted that the worker did not provide accurate records of her work hours. She acknowledged that she didn’t work all of the hours recorded and she sometimes forgot to “swipe out” at the end of her shift. There were also instances of the worker working from home with no start and end times recorded. These records did not accurately reflect the worker’s hours, so even if the ESA’s overtime requirements applied to her, she would be unable to establish that overtime pay was owed to her, said the board.

The worker’s application was dismissed and the employment officer’s decision was affirmed. See Paula Shreves v. CDW Canada, 2023 CanLII 37006.

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