Employee not entitled to overtime because he fulfilled duties of manager: tribunal
A restaurant chef who leaned on a contract clause to chase extra pay for his overtime hours has had his claim shut down by a workplace tribunal.
The decision, dated July 8, 2026, comes from Warren Insell, a member of the British Columbia Employment Standards Tribunal. It dismisses an appeal brought by a former head chef against Copper Otter Bar and Grill, confirming a director of employment standards determination that found the restaurant owed him no further wages.
The head chef worked from August 2023 to February 2024. After his employment ended, a delegate of the director of employment standards investigated his pay and issued a determination concluding the restaurant had not broken the Employment Standards Act and owed him nothing further.
That determination was not as one-sided as it might sound. The director had found the chef was underpaid by $1,880 for hours worked beyond his regular 40-hour week, since he was entitled to compensation for that time even while excluded from statutory overtime as a manager.
But the director also found the restaurant had already paid him an extra $2,307 when his employment ended.
The chef appealed, but not over the dollar figures. He argued the director had erred in law by overlooking language in his contract that he believed guaranteed him payment for unused banked time, separate from anything the Employment Standards Act required.
Banked time clause meets manager exclusion
At the centre of the appeal was clause 44 of the chef's employment agreement, which sets out that on termination, the employer must promptly pay out "any outstanding portion of the compensation including any accrued vacation and banked time" owed up to that point.
The chef argued this language overrode section 34(f) of the Employment Standards Regulation, which excludes managers from the Act's hours of work and overtime provisions entirely. His position was that even though the director had found he performed a manager's duties as head chef, and he did not dispute that finding, his contract still created a standalone right to be paid for every hour worked past 40 a week as banked time.
Insell wasn't persuaded. The clause, he found, never spells out what counts as banked time or how it builds up, and it stops well short of saying every hour worked past 40 a week automatically turns into banked time payable at the end of the job.
No payroll errors for appeal
The director had already gone through the chef's hours in detail, weighing time records submitted by both the chef and the restaurant and ultimately relying on the restaurant's own records to calculate his entitlements. Insell noted the director's determination that the chef "was not entitled to overtime because he fulfilled the duties of a manager" while working as head chef.
On appeal, the chef did not point to any misunderstood or misapplied legal principle. He simply took issue with how the director weighed the evidence about his hours and pay, and Insell found that kind of disagreement does not amount to a legal error.
Because the appeal had no reasonable chance of succeeding, Insell dismissed it under section 114(1)(f) of the Employment Standards Act without asking the restaurant to respond, and confirmed that the director's original determination stands.
