Worker had input on promotions, discipline; employees reported to him
An Ontario worker performed primarily supervisory duties and is therefore not entitled to statutory overtime pay, the Ontario Labour Relations Board has ruled.
The worker was hired in April 2019 to be an area zone supervisor for Kellermeyer Bergensons Services Canada (KBS), a cleaning company based in Edmonton that operates throughout Canada. His job was to oversee various accounts with clients such as shopping malls, warehouses, and department stores in Ontario. His responsibilities included visiting stores and supervising the tasks of cleaning crews, some of whom were KBS employees and some who were supplied by a subcontractor.
The worker visited client sites regularly, performing audits and reporting any issues to senior management. He also communicated client concerns and special requests to the crew and suggested to senior managers who on the crews should be team leads, and if there were no shows, he tried to find a replacement or ensure the duties were performed.
The worker performed hands-on cleaning tasks two or three times during his employment when he needed to fill in, but he mostly supervised.
Supervisory duties
The worker also reported performance issues to management and sometimes recommended when a warning letter should be issued or someone should be fired. However, he didn’t have the authority to hire, fire, or discipline on his own or make independent decisions.
Certain employment agreements with other employees indicated that they reported to the worker and the worker felt that employees thought of him as a supervisor. However, he believed that he was a supervisor in title only and he was primarily a translator who could communicate instructions to the cleaning crews, who were made up mostly of Spanish speakers.
Not long into the worker’s employment, KBS changed the worker’s title to area zone manager. There were two senior managers to whom he reported, but they were rarely in attendance. As a result, the worker was essentially on call at all hours, as some clients were open 24 hours or cleaning crews worked overnight when stores were closed.
The worker estimated that he worked at least 21 extra hours per week, which he later revised to 28 hours. Other employees said that they regularly saw the worker working overtime, including late nights and on weekends and KBS expected him to answer emails and phone calls at any hour.
Claim for overtime pay
In late July 2023, the worker resigned from his employment. He then filed a claim under the Ontario Employment Standards Act (ESA) for unpaid overtime.
An employment standards officer investigated the worker’s claim and determined that the worker was not entitled to overtime pay. Although the ESA requires an employer to pay an employee overtime pay for each hour of work in excess of 44 hours in each work week, the ESA Regulation has an exemption to that requirement. According to the regulation, the overtime provision doesn’t apply to “a person whose work is supervisory or managerial in character and who may perform non-supervisor or non-managerial tasks on an irregular or exceptional basis.” The officer found that the worker’s work was supervisory or managerial in nature.
The worker applied to the Ontario Labour Relations Board for a review of the officer’s decision.
The board noted that although the worker’s title as “area zone manager,” titles were not always determinative. However, in this case, the worker’s duties involved supervising the worker of cleaning crews within an area or zone, consistent with his original and new titles. In addition, crew members were advised that they reported to him and the worker acknowledged that employees thought of him as a supervisor.
Input on decisions
The board found that, although the worker didn’t have “ultimate decision-making power” and reported to senior managers, he had input on senior management decisions and recommended who should become team leads, which were promotions.
The board also found that though the worker did perform some non-supervisory tasks, he admitted that it was on an irregular, occasional basis, which the overtime exemption allowed.
The board found that the worker’s job was supervisory or managerial in nature and he was exempt from being entitled to overtime pay under the ESA. The employment standards officer’s decision was upheld. See Oswaldo Herrera v. Kellermeyer Bergensons Services Canada, 2024 CanLII 5474.
