Chef claimed he couldn't properly perform management duties because he had to do too much in the kitchen
This instalment of You Make the Call features an executive chef who claimed unpaid overtime for the long hours he worked at a startup restaurant.
In January 2015, a new restaurant call Furlough opened in Toronto. Furlough’s owner, Brent Vanderveen, posted for an executive chef in November 2014 and Justin Newrick accepted an offer for the position with a 40-hour work week, though he never signed the contract Vanderveen gave him.
Newrick was involved in buying equipment for the restaurant’s kitchen and suggesting menu items in the time leading up to the opening, but he wasn’t paid for it. His position officially started with the restaurant’s opening, at which point he was responsible for making employment and termination decisions and evaluating and disciplining staff. His job description also stated that he was to ensure all food was consistently prepared and served according to the restaurant’s recipes and standards. He was also responsible for training the kitchen staff, planning the menu, and running the kitchen.
Newrick interviewed candidates for sous-chef, line chef and dishwasher, but couldn’t hire them without Vanderveen’s approval. Equipment purchases also required Vanderveen’s approval.
When Furlough opened, it was immediately busy. According to Newrick, he ended up cooking most of the time and performing preparation work before the restaurant opened each day. He also had to clean the sinks and floor in the kitchen and take out the garbage after the restaurant closed, as Vanderveen wouldn’t hire enough staff to allow him to focus on the role of executive chef. He claimed he worked between 80 and 100 hours per week.
This was Newrick’s first experience as an executive chef, but felt he wasn’t able to properly fulfill his role because the lack of staff required him to assist regularly in food preparation, cooking and cleaning. Occasionally, Vanderveen sent the dishwasher home early if it wasn’t busy, leaving Newrick to finish the cleaning after the restaurant closed — which sometimes took until 1 a.m. or later. In addition, Newrick claimed the sous-chef could leave when he wanted, leaving Newrick the last kitchen staff member left.
On Feb. 11, 2015, Newrick texted Vanderveen to say he was feeling overworked and too much was being demanded of him, so he needed a day off. Vanderveen granted the day off, but the next day terminated Newrick’s employment.
Vanderveen claimed Newrick wasn’t working out as executive chef. He believed Newrick was trying his best, but he couldn’t perform the responsibilities of the position such as preparing recipe cards for each meal, ordering ingredients, and scheduling staff hours so he was able to perform his duties. Vanderveen felt Newrick reverted to the duties of sous-chef when he was unable to meet the demands of the executive chef position
Newrick filed a claim for unpaid overtime, arguing the bulk of his work consisted of non-managerial duties, so he was owed overtime for the hours he worked in excess of 44 per week even though his position was managerial in nature.
You make the call
Was Newrick not entitled to overtime pay in his role as executive chef?
OR
Was he entitled to overtime pay?
If you said Newrick was entitled to overtime pay, you’re right. An employment standards officer ruled Newrick wasn’t entitled to overtime pay because Ontario Regulation 285/01 under the Employment Standards Act states managerial employees who were exempt from overtime pay could “perform non-supervisory or non-managerial tasks on an irregular or exceptional basis” and remain exempt. However, the Ontario Labour Relations Board disagreed, finding the kitchen work Newrick performed was beyond “irregular or exceptional” — due to the staff shortages, Newrick was preparing, cooking, and cleaning every day.
The board found Newrick’s Feb. 11 text to Vanderveen supported his claim that he was working longer hours than normal. It didn’t really matter whether it was because Newrick was inexperienced or the restaurant was short-staffed — the fact was Newrick was working late hours and much of it was non-managerial work, said the board.
The board found Newrick’s overtime work — and much of his work during opening hours — was non-supervisory and non-managerial. Based on Newrick’s weekly wage calculation and his claim he worked 228 overtime hours — Vanderveen didn’t keep track of the hours Newrick worked — the restaurant was ordered to pay $5,182.44 in overtime pay to Newrick.
For more information see:
• Newrick v. 2439436 Ontario Ltd., 2015 CarswellOnt 18260 (Ont. Lab. Rel. Bd.).
