In Ontario, not all employees are entitled to overtime pay. While the Ontario Employment Standards Act, 2000 (the “Act”) requires that an employer pay an employee overtime pay of at least 1.5 times his or her regular rate for each hour in excess of 44 hours per work week, the Exemptions, Special Rules and Establishment of Minimum Wage Regulation (the “Regulation”) excludes several classes of employees from the overtime pay minimum standards.
One example of this is an employee in a supervisory or managerial role. The exemption under the Regulation states as follows:
Part VIII of the Act does not apply to, (b) 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.
Recently, the Ontario Superior Court of Justice had the opportunity to explore this issue of excluding supervisors and managers from overtime pay in the case of Tsakiris v. Deloitte & Touche LLP, 2013 ONSC 4207.
At the time of his wrongful dismissal, the plaintiff was employed in a senior managerial position. However, the plaintiff argued that despite his title, his job was not supervisory or managerial in character and he performed non-supervisory or non-managerial functions often in the course of his employment.
On a review of Ontario Labour Relations Board decisions, the judge in Tsakiris formulated a two-step test: (1) is the character of employment managerial or supervisory; and (2) if the employee performs non-managerial or non-supervisory tasks, are these done on an irregular or exceptional basis?
The Court concluded in Tsakiris that the proper way to interpret the supervisor/manager exemption in the Regulation is to determine whether in substance, the nature of the employment is truly supervisory or managerial in character. If so, the exemption applies and the overtime pay provisions do not.