Worker performed some managerial duties before shift or during downtime
The British Columbia Employment Standards Tribunal has upheld a finding that a restaurant worker was not a manager and was entitled to overtime pay.
The Farside Inn is a pub and restaurant in the Fairmont Hot Springs resort in Southeastern BC. The worker started her employment at the Farside around 2010.
The worker worked mostly as a server, but she sometimes performed managerial duties such as ordering inventory, scheduling employees, and hiring new employees. The managerial duties were mostly performed before her server shift or during downtime on the shift. Since she handled the schedule, she chose the hours that she worked.
At the worker’s request, the Farside provided the worker with an advance payment of $500 at the start of each month and the balance of her wages were paid at the end of the month.
A worker with ‘manager’ in his job title was primarily a salesperson with no subordinates and therefore not a manager, according to an Ontario court.
Employment standards complaints
The worker filed an employment standards complaint on Sept. 5, 2020, alleging that the Farside failed to pay her overtime wages. Soon after, she went on medical leave and returned in January 2021.
However, once the worker returned, the Farside terminated her employment. She filed a second complaint on Feb. 27, making additional claims that the Farside had failed to pay her regular wages and termination pay that compensated for her length of service.
A delegate of the BC Director of Employment Standards investigated the worker’s complaints. The delegate found that the worker was not a manager under the province’s Employment Standards Regulation because her “principal employment responsibilities were serving and bartending, not supervising or resources.” The Farside was ordered to pay the worker overtime wages in addition to regular wages, vacation pay, and compensation for length of services, for a total of $8,022.26 including interest.
The Farside was also ordered to pay five mandatory administrative penalties because of its breach of the Employment Standards Act (ESA) relating to paydays, split shifts, minimum daily hours, overtime wages, and length of service compensation.
A long-time manager failed to mitigate his damages from dismissal when he decided to change his career, a BC court ruled.
Employee not a manager: employer
The Farside appealed the order on the grounds that the delegate made an error in finding that the worker was not a manager and therefore entitled to overtime pay. The restaurant pointed out that the worker performed her role as a manager during her shifts as a server and she was paid a manager’s wage rate. It also indicated that it had new evidence in an email from the worker asking it to correct her Record of Employment (ROE) to state that she was a manager rather than a server.
The tribunal noted that the ESA only allowed an appeal on an employment standards determination on the grounds of an error in law, a failure to observe the principles of natural justice, or new evidence that became available that was not available at the time of the determination.
The tribunal found that the delegate’s finding that the worker was not a manager was supported by the worker’s evidence that she was responsible for both manager duties and serving and the former were performed only before her shift or during downtime. This was a finding of fact and not an error of law, said the tribunal.
As for the email from the worker, this was not fresh evidence, said the tribunal. The email was from June 2020 and the Farside could have discovered and presented it to the delegate during the investigation had it exercised due diligence, the tribunal said.
An entitlement to overtime pay does not require employer pre-approval or authorization, says an employment lawyer.
No basis to overturn determination
The tribunal also upheld all of the administrative penalties as appropriate, as such penalties are mandatory under the ESA and can only be cancelled for “circumstances amounting to bad faith or abuse of process… if [the tribunal] decides that the contravention which underlies it cannot be supported and must be set aside pursuant to one of the grounds of appeal…”
The tribunal dismissed the Farside’s appeal on the basis that it had no reasonable prospect of succeeding. See Farside Inn Ltd. (Re), 2023 BCEST 23.
