C.S.S. Office Furniture Systems Service Inc. v Burns

IN THE MATTER OF THE EMPLOYMENT STANDARDS CODE

AND IN THE MATTER OF AN ORDER ISSUED BY AN OFFICER UNDER THE

EMPLOYMENT STANDARDS CODE DATED AUGUST 16, 2018

BETWEEN:

C.S.S. OFFICE FURNITURE SYSTEMS SERVICE INC.

Appellant

- and -

LEONARD JOHN BURNS

- and -

Respondent

Third Party

DIRECTOR OF EMPLOYMENT STANDARDS

Date of Decision: August 11, 2022

FILE: EA-00026

PANEL

Ayla K. Akgungor – Vice-Chair

APPEARANCES

For the Appellant: Gordana Ivanovic, McMillan LLP

For the Respondent: Charles Osuji, Osuji & Smith Lawyers

For the Director: Evan Oikawa, Appeals Officer

Classification: Public

REASONS FOR DECISION

Introduction

[1]

These reasons address an appeal under section 95(2)(b) of the Employment Standards Code

(the “Code”) brought by C.S.S. Office Furniture Systems Service Inc. (the “Appellant”). The

appeal relates to an Order of Officer dated August 16, 2018 ordering the Appellant to pay Leonard

Burns (the “Respondent”) wages and overtime pay in the amount of $3,449.02. In addition, the

Order of Officer required the Appellant to pay $344.90 as an Order of Officer fee.

[2]

The appeal was heard virtually by way of Zoom and came before Vice-Chair Akgungor on

March 18, April 29 & 30, 2021, as the Appeal Body pursuant to section 69(1)(b) of the Code, O.C.

316/2018, and Rule 4 of the Board’s Rules of Procedure for Employment Standards Appeals.

[3]

The following individuals testified at the hearing on behalf of the Appellant: Ms. Jaclyn

Reid, Chief Operating Officer; Ike Janacek, former Dispatcher and Supervisor; Brent Reid, Co-

owner; Tony Waked, Account Manager; James Remezoff, Warehouse Manager; Doug Casey,

former Dispatcher; Justin Celotto, Lead Mover; Russell Hardman, Warehouse Coordinator; and

Geoff Lambert, customer of the Appellant.

[4]

Leonard Burns; Ken Orr, former Installer and Supervisor; and Barry Oakes, Installation

Manager all testified on behalf of the Respondent.

[5]

The main issue before the Appeal Body is whether the Respondent is employed in a

supervisory capacity so as to fall in the exemption to overtime pay set out at section 2(1) of the

Employment Standards Regulation (the “Regulation”). Section 2(1)(a) of the Regulation provides

that the overtime provisions of the Code do not apply to employees employed in a supervisory

capacity, managerial capacity or a capacity concerning matters of a confidential nature; and whose

duties do not, other than in an incidental way, consist of work similar to that performed by other

employees who are not so employed.

[6]

If the Appeal Body finds the Respondent falls within the exemption in section 2(1) of the

Regulation, then the Respondent is not entitled to overtime pay. Conversely, if the Respondent’s

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circumstances do not fall within the criteria specified in section 2(1), overtime pay will be owing

to the Respondent. The parties confirmed that, in the event overtime pay is owing to the

Respondent, they do not take issue with the amount awarded in the Order of Officer.

[7]

For the reasons that follow, the Appeal Body confirms the Order of Officer.

Bias Application

[8]

On July 27, 2021, counsel for the Appellant wrote to Employment Standards to raise a

concern about a reasonable apprehension of bias. Counsel for the Respondent replied to the

concern in writing on July 28, 2021. A reply was submitted by the Appellant on the same day.

Due to a mix-up in how these letters were distributed, they were not received by the Appeal Body

until December 13, 2021. At that time, the Appeal Body advised that it would address the bias

application as a preliminary issue.

[9]

The Appellant’s concern was that, subsequent to the appeal, the Appeals Officer became

employed at the law firm which represented the Respondent. Considering the dates of the Hearing,

the Appellant submitted that this presented a clear conflict of interest and placed into question the

Appeals Officer’s position at the hearing. Accordingly, any decision considering and placing

importance on the Appeals Officer’s representations and position at the Hearing would accordingly

be subject to a reasonable apprehension of bias. The Appellant submitted as follows:

Mr. Oikawa examined witnesses and made submissions to attempt to persuade Madame

Vice- Chair to dismiss the Appeal, all the while considering employment with Osuji &

Smith, counsel for the Respondent. Justice cannot be seen to be done in this case.

We are not suggesting bias on the part of Madame Vice-Chair, however, where there is a

finding of bias on the part of an individual who makes a recommendation to the ultimate

decision-maker and plays an important role in the decision-making process, a finding of

bias on the part of that individual can invalidate the decision even if there is no suggestion

of bias on the part of the decision-maker herself (Baker v Canada (Minister of Citizenship

& Immigration), [1999] 2 SCR 817).

[10] Counsel for the Respondent confirmed that the Appeals Officer had commenced

employment with his firm on May 24, 2021. However, counsel for the Respondent further advised

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that he had no private communications with the Appeals Officer prior to May 4, 2021 and provided

evidence of his electronic communications with the Appeals Officer.

[11] The Appeal Body is satisfied, on the basis of these timelines alone, that no concerns with

respect to any reasonable apprehension of bias arise. The hearing concluded on April 30, 2021

and the Appeals Officer did not reach out to Counsel for Respondent until May 4, 2021. The

Appeals Officer reached out through Linked In and advised counsel for the Respondent that he

had been impressed with his advocacy skills during the hearing and thought it would be good to

connect. The Appeal Body sees no impropriety in this regard.

[12] The Appeal Body finds that there is no reasonable apprehension of bias which tainted these

proceedings and there is no reason to order a new hearing or to disregard any of the Appeals

Officer’s submissions.

Evidence

(a)

Ms. Jacyln Reid

[13] Ms. Reid commenced employment with the Appellant in 2005. The Appellant sells, moves

and installs office furniture. Ms. Reid worked in various roles in the company from receptionist

to payroll to dispatcher to Operations Manager to Vice President and Chief Operating Officer. She

held the position of Chief Operating Officer when the Respondent resigned in 2018.

[14] Ms. Reid outlined the various roles at the Appellant’s workplace. Movers carry out moving

tasks assigned by supervisors and report to the site supervisor. Drivers load the trucks and take

furniture from place to place. Moving supervisors will supervise anywhere between 1 to 20 or 40

staff. The supervisors will organize with the client, report on performance, complete required

tasks and report on any incidents. Installation supervisors will supervise the installation of an

entire floor of furniture and dispatchers will assign orders that come in. Dispatchers tend to get to

know everyone and will assign jobs based on employees’ roles and capacities.

[15] Supervisors are required because they manage the entire project and must complete a task

list. Ms. Reid indicated that “client trust is huge”. The Appellant deals with major corporations

and confidentiality is important. She described supervisors as the key to the Appellant’s success

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in business. Supervisors have a certain level of authority and clients look to the supervisor for

feedback and information.

[16] Ms. Reid indicated that drivers and movers are not in attendance at client meetings. They

do not attend with the project manager when doing a walkthrough at a client site. They do not have

company vehicles for personal use. They do not provide input on employee performance nor do

they attend the Wednesday morning meetings or supervisor meetings.

[17] Managers are contrasted from supervisors in that managers deal with financial aspects of

the company and make financial decisions.

[18] There can be overlap between the roles as “everyone pitches in”. The Appellant has cross-

functionally trained staff because “you never know what will be asked of you when you get on a

client site”. Ms. Reid herself has “put on steel toes” and acted as a mover or answered the phones

when necessary. Sometimes the dispatcher will do moving when on site. This was especially the

case when the crew decreased in size after 2015. The Respondent would jump in to get the job

done and it was typically “all hands on deck”.

[19] When asked how other employees would know who is a supervisor, Ms. Reid indicated

that the supervisor’s name is listed in the crew sheets for each client site. A sampling of crew

sheets were entered into evidence before the Appeal Body. The Respondent is listed under

“Function” as the Supervisor on these crew sheets.

[20] Ms. Reid described the Respondent’s duties as guiding and mentoring new staff and

providing input to management on how new staff were doing. If Ms. Reid had questions about a

work order, she would call the Respondent for clarification and to authenticate the hours recorded.

The Respondent would go with the Project Manager to meet clients onsite and he would

communicate with clients and handle client concerns. The Respondent would act as a back-up for

the site supervisor and had a level of authority and control over the crew. Supervisors could send

employees home from the job sites if the circumstances warranted. The Respondent could also

purchase things for the company and submit expense receipts. He had no cap on what he could

spend. The Respondent was entrusted with petty cash while movers were not.

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[21] Ms. Reid testified that the Respondent was in the Supervisor role because of his skills and

experience. In addition to being a mover, the Respondent also had the skill set to be an installer

and a driver. She had never known the Respondent by any other title since the commencement of

her employment in 2005. The Respondent reported to Ms. Reid or to Mr. Brent Reid. She stated

that the Respondent has always been a supervisor in everyone’s eyes.

[22] Ms. Reid confirmed that supervisors are meant to work at the client sites. They take a list

and divide the tasks. Ms. Reid acknowledged that as a supervisor, the Respondent still drove a

truck because he was licensed to drive a five-ton truck and did so when required. She confirmed

that he would be involved in moving at the client sites as he would have been engaged in teaching

and mentoring.

[23]

Ms. Reid confirmed that supervisors were not involved in hiring decisions, although they

would be brought in to provide input to management on whether it was a good hiring choice.

Similarly, supervisors do not have authority to discipline or terminate but they are responsible to

document performance concerns in accordance with the Appellant’s Misconduct Notification and

Misconduct Write-up Policy and Procedure. No input was sought from movers regarding the

performance of other employees and movers did not have authority to send other employees home.

[24] Ms. Reid testified that the Respondent’s “input or influence over decisions reigned

supreme”. She described an incident where the Respondent reported that an employee, Justin

Celotto, was involved in theft from a client site. Mr. Celotto was then terminated the next day.

[25] Under cross-examination, Ms. Reid confirmed that the Respondent did not have the

authority to promote or demote employees, although he could make recommendations to

management. The Respondent did not participate in employee performance reviews. He could

not grant leaves of absence or medical leaves, although he could send someone home from the job

site for misconduct. The Respondent did not have cheque-signing authority. The Respondent did

have independent authority to extend the hours of work for staff by up to 3 hours without prior

approval in order to get a job done.

[26] The Appellant held regular Wednesday morning meetings. These were attended by

management, senior supervisors and project managers. Topics of discussion would include what

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projects they would bid on, rankings for performance reviews for staff, and any big changes

happening within the company. Employee salaries or wages were not discussed at these meetings

in the presence of the Respondent but wage increases would be generally discussed.

[27] The Respondent was entrusted with delivering Records of Employment and pay cheques

and discussed employee performance information at the Wednesday morning meetings. Ms. Reid

indicated that in carrying out these functions, the Respondent was exposed to the Appellant’s

confidential information.

[28] Ms. Reid described the perks that the Respondent received as a company vehicle for his

own use, the highest level of Christmas bonus and paid milestone vacations (Mexico at 10 years

and Australia at 15 years). The Respondent was the only employee to receive $10,000 in what

was described by Ms. Reid as profit sharing. Neither Barry Oakes or Ron Toole, other supervisors,

received profit-sharing. Cheques made out to the Respondent in the amount of $10,000 each and

dated March 26, 2009, November 10, 2009 and May 5, 2011, respectively, were entered in

evidence. The Respondent was the highest paid non-owner employee in the company. At the time

of his resignation, the Respondent was earning more than $24/hour.

[29] Ms. Reid described the Respondent’s compensation arrangements. She noted their industry

can be grueling and there is a lot of evening and weekend work. Initially, the Respondent was

paid an hourly wage and overtime at 1.5X the hourly rate. This arrangement was in place from

when the Respondent joined the company in 1993 until 2012. The Respondent did not have any

written contract of employment when he commenced work with the Appellant in 1993.

[30] On cross-examination, Ms. Reid confirmed that the Appellant was paid 1.5X the hourly

rate for hours over 40 in a week or 8 hours in a day. When asked if the 1.5X was overtime, she

indicated that they were legally mandated to pay overtime and that this flowed from the Code.

[31] The Respondent’s compensation arrangements changed in 2012 at the Respondent’s

request. The Appellant wanted to provide a guaranteed rate of pay to the Respondent and so it

moved him from a hourly rate to a salary. A Record of Employment (“ROE”), completed by Ms.

Reid, was entered into evidence which indicated that, as of July 1, 2012, the Respondent was

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transferred from hourly payroll to salary payroll. The Respondent’s occupation on the ROE is

described as “Supervisor”. The Respondent still continued to receive overtime pay after his move

to a salaried position.

[32] When asked why the Respondent was paid overtime, Ms. Reid indicated that as a salaried

employee, the Respondent was working in a managerial or supervisory capacity but he was paid

overtime out of loyalty and because it was important to exceed Employment Standards given the

grueling nature of the industry.

[33] On cross-examination, Ms. Reid confirmed that when the Respondent was put on salary,

they did not have a conversation about overtime. She did not tell him at that time that he was not

entitled to overtime. She indicated she would not have used the word “overtime” but would have

referred to “additional compensation”. When asked if the Respondent was paid overtime, Ms.

Reid agreed that the Respondent was paid “additional compensation”. She confirmed the

additional compensation did not correlate with 1.5X the hourly rate.

[34] When it was put to Ms. Reid whether she agreed that “additional compensation” referred

to overtime, she indicated overtime was commonly understood to mean any hours over 8 in a day

or 40 in a week. Ms. Reid confirmed that, in 2012, she was aware that supervisors were not entitled

to overtime.

[35] When asked when she informed the Respondent that he was not entitled to overtime, Ms.

Reid indicated that she was not clear what was being asked of her because the Respondent had

always been compensated for additional work.

[36] When asked why the Respondent was paid overtime prior to his change to the salaried

position, Ms. Reid indicated that possibly the issue was never looked at. Ms. Reid confirmed that

there was no change in the Respondent’s duties or responsibilities from 2012 to 2018.

[37] An August 9, 2017 employment confirmation letter was entered into evidence and states

“Currently Mr. Burns is earning a base salary of $2,430 bi-monthly; annual income of $58,320.00

gross. NOTE: the above salary amount does not take into account overtime worked and paid to

Mr. Burns which is compensated at an hourly rate of $25.00. To date in the calendar year for 2017,

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Mr. Burns has worked 249.25 overtime hours for an additional gross income of $6,231.25.” Ms.

Reid is the author of this letter although in her evidence during the hearing, she stated she made

an error in the letter by calling the extra work “overtime”.

[38] An earlier employment confirmation letter dated July 11, 2003, authored by the previous

co-owner of the company, described the Respondent as a full-time Supervisor who earns an

average wage of approximately $65,000 annually.

[39] Ms. Reid indicated that the Respondent was paid in the same manner as the project

managers and other senior supervisors. In 2013, the Appellant was going to move two other

supervisors to salary (Nicole and Darrell) but they wanted to stay on a hourly wage and receive

overtime pay. When asked during cross-examination whether everyone receives overtime for

excess hours worked, Ms. Reid confirmed this was the case but noted that it was “additional

compensation” paid at 1.5X the hourly rate. Ms. Reid confirmed that Barry Oakes, another

supervisor, was also paid additional compensation.

[40] A dispute arose as to the Respondent’s overtime pay in 2018. At that time, the Respondent

requested access to his payroll records and T4 information. He was provided with 7 years of payroll

information and snapshots from payroll reports. The Respondent then requested over $50,000 in

overtime pay. Ms. Reid responded by advising the Respondent that he was not actually entitled to

overtime pay but his extra hours of work had been compensated with extra pay.

[41] Ms. Reid indicated that the Respondent then denied that he was a supervisor and described

himself as a mover/driver. Ms. Reid stated that in 2018, she had gathered information to generate

a job description for the Respondent’s role and that he had completed a questionnaire for it.

[42] The questionnaire was put into evidence and shows that the Respondent described his role

as Move Supervisor. The Respondent described his role as a front-line company representative

that usually works with the client one-on-one. He also stated that he needed to have the respect of

the crew and know the crew’s abilities and limits.

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[43] Ms. Reid confirmed on cross-examination that the job description for the Respondent’s

position did not exist prior to the filing of his complaint under the Code. No formal job descriptions

existed prior to this time.

[44] The Appellant provided the Respondent with two offers at this time. The first offer, signed

by Ms. Reid, is dated February 14, 2018 and describes the position as Moving Supervisor. The

offer states that the Respondent will be paid $29.50 per hour and any overtime will be paid at

$44.25 per hour. When it was put to Ms. Reid in cross-examination that the overtime rate, at

$44.25, was the regular rate of $29.50 multiplied by the Code overtime rate of 1.5, Ms. Reid stated

that they “can’t not compensate for overtime”.

[45] Similarly, the second offer, also signed by Ms. Reid, and dated February 14, 2018,

describes the position as Moving Supervisor. The offer states that the Respondent will be paid an

annual salary of $61,560 and that if additional hours are worked, they would be paid at an hourly

rate of $25.00.

[46] According to Ms. Reid, the Respondent refused to sign either offer until his demands

regarding the outstanding overtime pay were met.

[47] On cross-examination, Ms. Reid confirmed that these offers were made in response to the

Respondent raising concerns about his overtime pay. Ms. Reid conceded that, at this point, she

knew supervisors were not entitled to overtime pay but she nevertheless gave the Respondent an

offer with overtime pay. She indicated she did so because they care about their staff and want to

ensure they are happy with their rate of pay.

[48] Ms. Reid then addressed certain of the Appellant’s marketing materials, which were

entered in evidence, to demonstrate how the Respondent’s role was portrayed to the public. These

materials included website extracts, client information packs and responses to tenders and revealed

the following information:

• Folder pages attached to an email dated February 14, 2011 which describe the Respondent

as “Senior Supervisor, File Manager – 24 years experience”;

• The inclusion of the Respondent, along with 9 others, on a “main contact” phone list. Ms.

Reid testified that only supervisors or higher were included on this list;

• An information pack describing the Respondent as “Senior Supervisor, File Manager”;

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• A client email dated February 8, 2015 stating that their move had gone perfectly and that

“Leonard did a great job leading the pack”;

• A request for proposal describing the Respondent as a “Supervisor” and listing him under

“Key Personnel”; and

• An information request response for a client describing the Respondent as a “Senior

Supervisor and File Manager” and listing him under “Key Personnel”.

[49] Ms. Reid testified that all these materials would have been known to the Respondent as he

would have taken these materials to clients.

[50] Ms. Reid also referred to the first documented performance review that was carried out for

the Respondent, which was entered into evidence. The review was carried in January 2014 for the

2013 year and refers to the need for the Respondent to “report/document staff’s performance (not

just in Wednesday meeting)” and “mentoring of staff to improve greatly being a supervisor of the

crews”. Similarly, in a June 4, 2018 Monthly Supervision form, the Respondent is directed to use

the “misconduct forms to eliminate unwarranted behaviors and help management solve problem

areas and bad habits”. The Respondent refused to sign or discuss the Supervision Form.

[51] Ms. Reid also addressed a supervisor’s only meeting that took place in November 2015

and was attended by all supervisors, senior supervisors and managers. The Respondent was

present at that meeting. Topics discussed were the challenges they were facing, what tools they

needed to supervise and whether they should have weekly or monthly supervisor meetings to keep

in tune with everyone. Ms. Reid also put into evidence meeting notes she had compiled from

November 2015 one-on-one meetings with staff where the Respondent raised an issue recorded as

follows: “walking/one lead supervisor – overseeing crew vs. working with crew”. During cross-

examination, Ms. Reid acknowledged that this issue was raised by the Respondent during the

meeting as he was concerned that if the Appellant wanted him to be a supervisor then he should

be supervising and not working with the crew. Ms. Reid explained that they did not have enough

business coming in at the time to do that and they needed everyone to pitch in. When asked what

the difference was between a supervisor and a worker, Ms. Reid indicated that the Respondent did

site assessments and addressed client concerns.

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[52] Ms. Reid also tendered as evidence various crew sheets from 2017 and 2018 which showed

the Respondent meeting with the client to orchestrate the job and then cancelling the shifts of

certain workers as a result.

[53] A number of emails (referred to by Ms. Reid as a small sampling) were tendered in

evidence to show the interactions between the Respondent and clients. More particularly:

• An August 11, 2008 email to client referring to when the Respondent would be onsite for

the move;

• A July 31, 2009 email indicating that the Respondent and Darrell Kennedy had been at a

meeting with a client;

• An August 18, 2010 client email referencing the Respondent as the onsite client contact

and indicating that their librarian has been “raving about Leonard and his crew as they were

very efficient and always came to her with questions as they arose”;

• A November 23, 2010 email referring to the Respondent and Barry Oakes as the onsite

client contact;

• December 22, 2010, February 24, 2011, and March 3, 2011 emails to a client indicating

that the Respondent will be the supervisor onsite;

• A February 24, 2011 email to a client indicating that the Respondent will be the supervisor

onsite;

• A December 8, 2011 email referring to the Respondent as the onsite client contact;

• March 21 and 25, 2012 emails referring to the Respondent as the onsite client contact;

• A February 17, 2015 email referring to the Respondent arriving early at the client site;

• A February 20, 2015 email from a client referring to the Respondent as doing the project

work;

• A March 2, 2015 email from a client requesting the Respondent or Ron be onsite for the

move and inquiring if the Respondent can schedule with dispatch if he needs a helper or

extra installer or whether the Respondent should go through Mr. Waked;

• An email dated July 11, 2016 demonstrates that pricing for a customer job was based on

information gathered by the Respondent. Ms. Reid testified that a mover or driver would

never go to a customer site and provide pricing.

• A January 24, 2017 email from a client requesting the Respondent or Mr. Oakes to attend

at the client site to see what the client wanted done;

• An August 22, 2017 email from a client referring to the Respondent as doing “a masterful

job at organization and task completion! As always.”;

• A November 22, 2017 email from a client requesting either the Respondent or Mr. Waked

to be onsite for the moves; and

• An August 28, 2018 email showing that the Respondent and Mr. Waked would attend at a

client site.

[54] The Appeal Body notes here that while the Respondent was referred to in many of the

above email communications as the onsite supervisor, the email exchanges were invariably

between the client and Mr. Brent Reid or the client and Mr. Tony Waked. There did not appear to

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be any examples within the emails of the Respondent communicating directly with any of the

Appellant’s clients by email.

[55] During cross-examination, Ms. Reid described how a job for a client generally unfolds.

First, the client will contact the Project Manager. A site assessment is then done and that

information is provided to dispatch. Dispatch will then designate who is on site based on

competency, skill and familiarity with the client. Ms. Reid conceded that an individual could be a

supervisor one day and then reporting to a supervisor on another day depending on the job. There

could also be more than one supervisor one site but normally there would be a main direct

supervisor.

[56] When referring to the crew sheets, Ms. Reid confirmed that different employees can hold

different roles depending on the job. For example, Mr. Reid, who is the co-owner of the company

and was a project manager in 2010 was also listed on crew sheets at that time as a driver or a

supervisor. Similarly, an employee named Merhawi, who was hired as a mover, was listed as a

Supervisor on the September 18 crew sheet. Ms. Reid was not able to explain why this was as

Merhawi was not promoted to a supervisor.

(b)

Mr. Ike Janacek

[57] Mr. Janacek was employed with the Appellant from 1999-2003, first as a mover, then as a

dispatcher and then as a supervisor. He described a mover’s job as being to move things and to

do whatever they were told to do. As a dispatcher, Mr. Janacek worked at the head office and

coordinated all the jobs. He described the role of supervisors as “running the jobs they were on”,

“whatever was needed happened” and then supervisors would do a walk through with the client.

[58] When he was a supervisor at the Shell site, Mr. Janacek agreed that he still did the work

alongside his crew, but that he did more work as a supervisor because he was in charge and had to

make sure the client was satisfied and the paperwork was completed. He agreed that as a

supervisor he could still be doing the moving and driving jobs. How much moving or driving he

did as a supervisor would vary depending on the job. It could be no moving, spending 50% of the

time moving or on weekends, he could be moving all day. He agreed that he was called a

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supervisor because he was in charge of the site and described the primary duties of a supervisor as

meeting with the client and coordinating whatever had to be done.

[59] Mr. Janacek described the supervisors during his employment as the Respondent, Barry

Oakes, Tony Waked and Wayne Reid. When asked how he knew that the Respondent was a

supervisor, Mr. Janacek stated “because that is what he did”. The Respondent would stop by the

office to get paperwork for himself and his crew to complete jobs. As dispatcher, Mr. Janacek

would assign crews to the Respondent and if anything popped up on a job, he would call the

Respondent on his cell. The Respondent would also get cash on the weekends to buy lunch for

the crew.

[60] Mr. Janacek testified that he would expect supervisors to complete timesheets, meet with

clients before the move and if needed, then help out with the moving. If issues came up on the

job, then clients would speak to the supervisor. Movers would take direction from the supervisor

on the job site. On cross-examination, Mr. Janacek agreed that the Respondent moved boxes

whenever needed and probably did so on every job. He agreed that the Respondent would drive

the truck which Mr. Janacek did as well when he was a dispatcher. When asked if the Respondent

was responsible for moving, Mr. Janacek stated yes, but “to a higher level. He wasn’t just a

mover.” The Respondent did some installations as well. He “knew his stuff”.

[61] In terms of authority, Mr. Janacek understood that supervisors could send people home if

they were careless or had a bad attitude and he had done this himself as a supervisor. He had no

direct knowledge of whether the Respondent had sent people home. However, Mr. Janacek

acknowledged that you did not need to be a supervisor to send people home and that he had done

this as a dispatcher. Mr. Janacek agreed that supervisors had no power to hire or fire staff and

that he was only involved in performance reviews or promoting or demoting workers through the

owners. He would provide input.

[62] As the dispatcher, Mr. Janacek would attend Wednesday morning meetings with

management. He stated that the Respondent was in attendance at these meetings. Mr. Janacek

agreed that it was the responsibility of the dispatcher to schedule work.

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[63] He did not recall a position referred to as “Lead Hand” but thought that Barry Oakes might

have been referred to as the “Lead Installer”. Mr. Janacek agreed that he would send Mr. Oakes

to jobs to supervise even though he was not a supervisor. This is because Mr. Oakes was one of

the core group of people who knew what they were doing.

[64] To be sent to a job as a supervisor, the employee needed experience and it had to be

someone who could run the job and be trusted. Mr. Janacek also sent Mr. Wahed, the Respondent

and Jim to sites to supervise. He conceded that he sent Mr. Wahed to supervise sites because Mr.

Wahed knew what he was doing as Mr. Wahed was not a supervisor in title.

[65] Mr. Janacek explained that titles were not determinative as they were “not a big thing” at

the company. It was more important to have a senior and trustworthy person.

[66] When asked what role he would assign to the Respondent when he sent him to job sites,

Mr. Janacek indicated that it would depend on the size and nature of the job but that he tended to

send the Respondent out as the “top guy”.

(c)

Mr. Brent Reid

[67] Mr. Reid is the co-owner of the Appellant. He took over the company when his mother

retired in 2012. His mother and father were the original owners of the Appellant.

[68] As the company was a family business, Mr. Reid knew everyone who worked there well,

even when he was a child. Mr. Reid he had always seen the Respondent as a supervisor as he was

his father’s “right hand man”. His father thought highly of the Respondent and would seek his

input. Mr. Reid’s understanding was that the Respondent had been hired as a supervisor. Mr. Reid

was not part of the Respondent’s hiring but his parents told him that the Respondent was hired as

a supervisor. Mr. Reid could not say when his parents told him this.

[69] When Mr. Reid took over the company, he acted in the sales and Project Manager roles.

In these roles, he would go with the Respondent to visit client sites. At the client sites, he would

introduce the Respondent as the job supervisor and they would go through the space and decide

what needed to be done.

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[70] The Respondent would provide input to Mr. Reid on staff members in terms of what he

thought of the worker or how the worker was doing. Sometimes Mr. Reid would approach the

Respondent for input and sometimes the Respondent would come to him to share information.

When asked who else provided that type of input to him, Mr. Reid stated that Mr. Oakes and Mr.

Toole did and that sometimes project managers would bring up issues. Movers might share things

with him if it involved safety concerns but performance issues would only be provided by the

supervisors. Mr. Reid confirmed supervisors were responsible for documenting/reporting

employee performance onsite. This would then be reported back to the owners.

[71] Mr. Reid explained that at the Wednesday morning meetings, they would plan the

upcoming week and account managers and supervisors would attend the meetings. The

Respondent’s role at the meeting was to discuss who should be scheduled on the jobs based on

skill set. However, the dispatcher was ultimately the individual who assigned the work and would

advise the Respondent of his crew.

[72] The dispatch or crew sheets are used by the dispatcher to figure out the crew for each job.

If there were going to be changes to the dispatch sheets, they would normally be communicated

by the dispatcher to the supervisor. Supervisors did not generally determine the crews but who

was on the crew was always open for discussion. If a job continued into the evening, a supervisor

could add crew members.

[73] Mr. Reid confirmed that the Respondent worked at the job sites. He would take the

supervisor position, dole out tasks and make sure the job was well done. Mr. Reid confirmed that

he had worked onsite with the Respondent and that the Respondent had worked in both the driver

and mover roles on site. Mr. Reid testified that the Respondent was virtually always a supervisor

or a co-supervisor on the site. Mr. Reid conceded that the Respondent also performed driving

work and installation work for the Appellant but that in those instances, his title did not change to

driver or installer.

[74] Mr. Reid described the Respondent’s duties as 100% supervision even though he agreed

that the Respondent would also perform moving, driving and installing at client sites. Mr. Reid

Classification: Public

16

indicated that this was especially so if there were new staff who needed to be trained. Mr. Reid

declined to characterize most of the Respondent’s tasks as “hands-on”.

[75] In terms of the Respondent’s compensation, Mr. Reid confirmed that, prior to 2012, the

Respondent was paid an hourly wage and 1.5X overtime. Mr. Reid conceded that there were no

issues with the Respondent receiving 1.5X overtime at that point. The issues started when the

Respondent asked to be put on salary. Mr. Reid described being on salary as different because the

Respondent was receiving a guaranteed income no matter what. The extra compensation he

received for extra hours was described as an “extra perk” because he was a top employee.

[76] Mr. Reid testified that the Respondent was advised in 2012 that he was not entitled to

overtime as a supervisor. During cross-examination, Mr. Reid confirmed his own understanding

in 2012 was that salaried employees were not entitled to overtime.

[77] Mr. Reid confirmed supervisors do not have the authority to hire or fire personnel, to

increase or decrease wages or to conduct performance reviews. Supervisors can correct matters on

site, however, such as if an employee is not wearing the appropriate personal protective equipment.

Supervisors cannot authorize vacation. The Respondent would defer to dispatch for scheduling

and dispatch would let people know their hours. The Respondent could only offer “influence” on

these types of decisions.

[78] In terms of confidential information, Mr. Reid testified that the Respondent had access to

employee performance information.

[79] In the two years prior to 2018, Mr. Reid indicated that the supervisors were the Respondent,

Mr. Oakes, Mr. Toole, Mr. Kennedy, Mr. Ken Orr and Ms. Nicole Fortin. Mr. Reid confirmed

that the Respondent worked alongside these individuals at the job sites and would have supervised

them.

(d)

Mr. Tony Waked

Classification: Public

17

[80] Mr. Waked has worked for the Appellant since 1994. He was first hired as a helper, where

his duties were to do anything that was required to be done such as pushing dollies and loading

trucks. In this role, he took direction from the supervisor.

[81] Mr. Waked then worked as a supervisor and he described his duties in that role as going to

see the client, getting lists and doing everything on the lists. Mr. Waked described each supervisor

as being responsible for their own staff and telling them what to do and where to go. He testified

that supervisors “do everything”. They push dollies and jump from place to place to make sure

the job is running smoothly. The crew would take direction from the supervisor as there was

always one supervisor running the show.

[82] Mr. Waked subsequently worked as a dispatcher, then a project manager and is now an

account manager. He still acts as a senior supervisor on big projects. When he acted as a

dispatcher, he would always send the Respondent out as a supervisor or driver. Mr. Waked agreed

that there were jobs where the Respondent would have carried out the duties of a helper or driver.

He did whatever was asked of him. In response to a question by the Appeal Body, Mr. Waked

estimated that the Respondent would spend 85-90% of the day being a supervisor and the rest of

the day chipping in.

[83] When asked in cross-examination if the Respondent spent more than 50% of the time doing

what the crew does, Mr. Waked recalled the Respondent working with the team doing whatever

was needed.

[84] Mr. Waked agreed that supervisors could not hire or fire, promote or demote or carry out

performance evaluations. However, supervisors could provide input or influence or express

opinions on these issues.

[85] Mr. Waked described the supervisors between 2012 and 2018 as himself, the Respondent,

Mr. Reid and Mr. James Remezoff. Mr. Waked has worked with the Respondent for 25 years of

his 27 years with the company. He testified that he always knew the Respondent as a supervisor,

but he also did work as a driver and helper. When Mr. Waked started, the Respondent was his

supervisor much of the time.

Classification: Public

18

[86] When asked how he knew that the Respondent was a supervisor, Mr. Waked stated he was

told as much and the Respondent directed him where to go. Mr. Waked noted that supervisors do

everything at the job. They are “everywhere on the job making sure it all gets done”.

[87] Mr. Waked testified that clients liked the Respondent and their understanding of his role

was that he was at the top of the list to assign as a supervisor. Mr. Waked stated that he would

attend at client sites with the Respondent. The project managers and supervisors would usually

attend the client walk-throughs and sometimes crew would attend as well. The Respondent was

introduced to clients as the supervisor during these walk-throughs. If clients had issues, they would

talk to the supervisor who would then go to management.

[88] Mr. Waked indicated that the Wednesday morning meetings were used to discuss logistics

and who would run what. He attended the meetings and recalled the Respondent, Mr. Remezoff,

Mr. Reid, Mr. Wayne Reid (the original owner), Ms. Adele Reid (the original co-owner) and Mr.

Toole being in attendance at the meetings.

[89] Mr. Waked confirmed that when he was a supervisor he received pay for working extra

hours.

(e)

Mr. James Remezoff

[90] Mr. Remezoff commenced employment with the Appellant on July 24, 2000. He is now

the Appellant’s Warehouse Manager. He held previous roles in dispatch and as a move and install

supervisor. As a supervisor, he was the first line of contact with the clients. He would pass

information on to workers and make sure the duties were carried out. He would also deal with any

conflicts that arose. When he moved to a supervisor role, he was given an increase in pay.

[91] When Mr. Remezoff commenced work with the Appellant, the Respondent was already

there. Mr. Remezoff worked under the Respondent in his younger years and they have worked

together on many moves for many years. The Respondent supervised Mr. Remezoff for at least

10 years when he was a junior mover and installer. Mr. Remezoff indicated that he definitely took

direction from the Respondent. Mr. Remezoff stated that if any issues arose on the work site, they

Classification: Public

19

would go to the supervisor to resolve the issues. Movers would never have direct contact with

clients themselves.

[92] On cross-examination, Mr. Remezoff confirmed that the person in charge of the work site

can change from time to time as there are many supervisors. However, he stated that the

Respondent would have been the guy in charge 80% of the time. The company also leaned heavily

on the Respondent to drive and install. In certain circumstances, the Respondent would not be the

supervisor, for example, when he drove the truck on large-scale moves. He didn’t supervise every

job the Appellant did and there would be times where someone else would supervise the

Respondent. Those who supervised the Respondent included Mr. Remezoff, Mr. Oakes, Mr. Reid,

Ms. Fortin, Mr. Waked, Rick Sawyer, Susan Saywer and Wayne Reid.

[93] Mr. Remezoff confirmed that the Respondent did not schedule hours of work but he did

ensure staff attendance. It was not a supervisor role to schedule time off or vacation. In terms of

authority to discipline, Mr. Remezoff recalled being sent home by the Respondent after a verbal

altercation with Mr. Waked. He also recalled a situation where the Respondent sent home Justin

Celotto when he attempted to take client liquor home.

[94] Mr. Remezoff testified that all the supervisors would have input into employee

performance evaluations through the Wednesday morning meetings. They would collectively go

around the room and give their input. Performance appraisals were presented to the employee by

management or company ownership and not by the supervisors. In terms of hiring and firing, Mr.

Remezoff indicated that the final decision rests with the ownership, but supervisors could provide

input into these decisions.

[95] Mr. Remezoff testified that supervisor duties do not take up a lot of time. Once the job

gets started, supervisors work beside the crew and are hands on. Things will come up during the

move so the supervisor role never turns off. Supervisors are always watching the crew making sure

they are on time and moving things smoothly. Supervisors use different skill sets all the time. Mr.

Remezoff estimated that on any given day, supervisors spend 60% of their day on the supervisory

tasks and 40% of their day on moving and installing.

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20

(f)

Mr. Doug Casey

[96] Mr. Casey is a former employee of the Appellant. He worked there for 6-7 years and left

around 2000. He worked as a dispatcher.

[97] At the time of his employment, he recalled the Respondent, Eunice Casey and Rick Sawyer

as the supervisors. He described these individuals as “lead hands”. When asked how he knew

that these individuals were supervisors, Mr. Casey advised that he made them supervisors by

assigning them as such on the crew sheets. There was not a title of “supervisor” at that time. He

was not aware if these individuals got additional compensation by virtue of being assigned as

“supervisor” on a job.

[98] On cross-examination, Mr. Casey distinguished between a “lead hand” and a “supervisor”

by noting that lead hands could do a lot of what the supervisor could do except talking to the client.

Also, lead hands would not be placed in charge of large jobs.

[99] Mr. Casey indicated that he was the one who had hired the Respondent. He had been with

the Appellant as a dispatcher for less than year before the Respondent started. At that time, there

was not a position called “supervisors”. The company was not that formal. When he hired the

Respondent, Mr. Casey was looking for a supervisor. In his mind, the Respondent was a supervisor

but he probably did not tell the Respondent that he was a supervisor as they would have had to pay

him more money. However, he also acknowledged under cross-examination that he had hired the

Respondent to drive the trucks, and act as a mover and installer. Mr. Casey further stated on re-

direct that when he hired the Respondent he was looking to fill the positions of spare truck driver,

pusher, supervisor and lead hand. Primarily, he was looking for someone to supervise large jobs.

[100] He did not generally observe the Respondent doing his duties but the Respondent would

report back and forth to him as the dispatcher on the status of the job. As the dispatcher, Mr.

Casey would advise individuals about the jobs they were assigned to and then those individuals

would take direction from the supervisor on site.

[101] Mr. Casey indicated that he generally scheduled the Respondent for large jobs on the origin

end and on smaller jobs, he would classify the Respondent as a supervisor. The Respondent was

Classification: Public

21

still a worker, however, and would pitch in to get the job done. Mr. Casey would generally assign

the most senior person who had the ability to lead the crew as the supervisor. Mr. Casey would

assign the Respondent as a supervisor because he was a good worker, he knew his abilities and

had worked with the Respondent before.

[102] Mr. Casey agreed that everyone did everything on the job sites. He also agreed that there

were times where the Respondent was supervised by others and that the Respondent could be on

the job without being a supervisor. Similarly, Mr. Casey had assigned other supervisors to work

under the Respondent on certain jobs.

[103] Mr. Casey agreed that a fair summary of the supervisor role was to talk to the client and

perform the work orders. In an 8-hour shift, a supervisor would maybe spend 1.5 hours dealing

with the work order. Mr. Casey agreed that supervisors would spend more time on a shift working

alongside the movers than they would supervising.

[104] The Respondent did not have the power to discipline on his own. He would need to reach

out to dispatch before he could remove someone from a shift. Similarly, the Respondent did not

have the power to hire or fire on his own nor did he have the ability to make decisions that affected

the company. The Respondent was not officially involved in employee performance reviews but

his opinions were valued. The Respondent was not involved in formal reprimands of staff nor was

he involved in terminating staff. The Respondent did not schedule vacation or time off for

employees nor could he enforce attendance at work.

[105] The Respondent did not have the authority to commit the company financially although he

could spend $10 per employee on supper or things of that nature. It was mainly the owners who

were involved in financial decisions.

[106] Mr. Casey attended Wednesday morning meetings which he recalled being referred to as

“supervisor meetings”. The purpose of the meetings was to touch base with the things that were

going on and the jobs coming up. Employee performance was also discussed at the meetings.

Supervisors had to be there “just for general knowledge”. He recalled the Respondent, Eunice

Casey, Wayne Reid, Adele Reid, Rick S. and Barry Oakes being in attendance.

Classification: Public

22

(g)

Mr. Justin Celotto

[107] Mr. Celotto is a current employee of the Appellant. He commenced work for the Appellant

in 2012 but had worked for the Appellant for one year previously in 2004. He described his role

in 2004 as a mover, a “grunt”. In 2012, he returned as a mover and installer and learned to drive

the trucks. In 2018, he became a Lead Mover. A Lead Mover means that you have more

experience and seniority than a regular mover. As a Lead Mover, Mr. Celotto does not have the

authority to remove workers from site. However, he could ask workers to stop working and then

direct them to discuss the issue with the site supervisors.

[108] Mr. Celotto described the supervisors as being Darryl Kennedy, Nicole Fortin, Barry

Oakes, Ron Toole, Ken Orr, the Respondent and Clayton. He indicated that supervisors attend

onsite and everyone checks in with them. Supervisors divide the crew to complete tasks and

complete paperwork. Mr. Celotto described supervisors as very hands on. They will both delegate

tasks and complete them themselves. Mr. Celotto stated that it would be hard to estimate the

amount of time spent working vs. supervising in terms of a percentage.

[109] Supervisors do not have the authority to schedule employees. That is done by dispatch.

Supervisors do not have the authority to hire or fire, to discipline staff or to schedule time off or

vacation for staff. Mr. Celotto did not have personal knowledge of whether supervisors were

involved in performance reviews other than to say that no supervisors had been involved in his

performance reviews. Supervisors could enforce workplace attendance by calling dispatch or

himself as the lead mover.

[110] Mr. Celotto indicated that movers can communicate with the clients and answer simple

questions but for bigger issues, like changes to a job which would lengthen it, then that would have

to be run by a supervisor.

[111] Mr. Celotto stated that he left the Appellant’s employ in 2004 because he was fired by the

Respondent. Mr. Celotto indicated that he had been taking boxes to the garbage at a client site

when he noticed some bottles of alcohol. He put the alcohol in his backpack. When the

Respondent asked him what was in his bag, he told the Respondent who then said “go home, you’re

Classification: Public

23

done.” Mr. Celotto was subsequently off for a couple days and then went into a meeting with the

owner (Wayne Reid). He learned from Mr. Reid that his employment was terminated. On cross-

examination, Mr. Celotto clarified that the Respondent had only asked him to go home and had

not fired him. Mr. Reid was the one who fired him. The Respondent would not have had the

authority to fire him. He could have only influenced the decision. Mr. Celotto also conceded that

the Appellant had a no alcohol consumption policy.

[112] When asked why he had to follow the Respondent’s direction to go home, Mr. Celotto

indicated that it was because he was the supervisor on site. He knew the Respondent was the

supervisor because of his seniority and experience and because the Respondent had worked for the

Appellant for a long time. Prior to 2018, the Appellant did not have specific titles. Sometimes

people would be called field supervisors or installation supervisors. It was more that someone

would act as the supervisor if they had seniority and experience. The Respondent was also a driver

and could use tools.

[113] When asked about the term “lead hand”, Mr. Celotto said that this term came from a

different company but that he would use that term interchangeably with “supervisor”. They were

similar roles.

[114] Every job was different and the supervisors would be different depending on the sites. Mr.

Celotto would get information from dispatch as to where he was working and then check in with

the site supervisor first thing in the morning. As he completed tasks, he would check in with the

supervisor and then be assigned other tasks on the master list for the client. There would be times

when he and the Respondent were taking directions from other supervisors on clients sites such as

Nicole or Ron. Other people besides the Respondent would run jobs.

(h)

Mr. Russell Hardman

[115] Mr. Hardman is currently employed by the Appellant as the Warehouse Coordinator. He

started work with the Appellant in May 2009. Previously, he worked as a mover and junior

installer.

Classification: Public

24

[116] Mr. Hardman described the supervisors as being Barry Oakes, Ron Toole, the Respondent,

Mr. Waked, Mr. Reid and Mr. Remezoff. He knew these individuals were supervisors because

“these are the people you listen to and follow direction”. Supervisors coordinate with the client,

run the crew, divide up the work and oversee the job and outcome.

[117] Mr. Hardman had a good working relationship with the Respondent and they completed

many jobs together. He understood the Respondent to be one of the top 3 guys when it came to

supervisors. The Respondent would organize jobs, coordinate with the client and “get guys from

dispatch”. They would also pitch in on the jobs as well. If problems or issues arose at the job site,

these would be reported to the supervisor. Updates would also be provided to the supervisor. On

occasion, supervisors would need to get the management perspective before dealing with a

problem. Supervisors directed Mr. Hardman at the job site, sometimes it was the Respondent and

sometimes it was Mr. Oakes.

[118] Mr. Hardman worked on job where the Respondent was not the supervisor and there were

times when the Respondent didn’t run any part of the job at all. Usually all hands were needed on

deck. However, the Respondent was the supervisor on jobs more often than not.

[119] The decision as to who will act as a supervisor on any given job depends on the project and

who is available. Other criteria include seniority and experience. Employees were not generally

hired off the bat as supervisors. The title was a reflection of experience, seniority and

responsibility.

[120] The Respondent reported to the owners along with the other supervisors and project

managers. Dispatch would provide direction to the supervisors for the day’s job.

[121] Mr. Hardman never observed the Respondent hire or fire anyone but he influenced firings

such as the incident with Mr. Celotto. Mr. Hardman indicated that the Respondent thought that it

was a mistake to bring Mr. Celotto back into the company after he was initially fired. Supervisors

could also provide input to hirings but they never sat in on the interviews. Supervisors cannot

schedule time off or vacation for the crew. They can send crew home from the job site but formal

discipline is done by management. Supervisors are involved in performance reviews by

Classification: Public

25

participating in a full meeting to review staff performance but would not have been directly

involved in meeting with the employee when the Respondent was employed with the Appellant.

[122] Mr. Hardman is paid overtime in his role as the Warehouse Coordinator. He was not aware

of the specifics of whether supervisors got paid overtime.

(i)

Mr. Geoff Lambert

[123] Mr. Lambert was a former customer of the Appellant. He contracted the Appellant to

provide moving and installation services. Mr. Lambert knew the Respondent because he would

often see him or communicate with him on site. The Respondent installed their configurations and

executed projects. The Respondent was a part of a good percentage of their installations. Mr.

Lambert was not present for the physical installations but if he needed to contact someone on site,

he would contact the Respondent.

[124] Mr. Lambert did not know the Respondent’s position title but described him as the “point

person” or main contact at the site. The Appellant would assign a lead person for each job. If it

was not Mr. Brent Reid or another senior person, then it would be the Respondent. Mr. Lambert

indicated that he had three main contacts with the Appellant. He would not keep Mr. Reid in the

loop with the project unless he was involved with the specific project. Mr. Lambert communicated

exclusively with the person provided to him by the Appellant as the point person for the job. Mr.

Lambert understood this person to be leading the project. He was not concerned with the person’s

title. He considered the Respondent to be a senior person in a leadership role.

[125] Mr. Lambert described the term “point person” as meaning someone who was responsible

for everyone on site, who ensured quality control and ensured everyone was doing what they

should. He indicated that everyone on site would report to the Respondent.

[126] Mr. Lambert communicated with the Respondent on issues such as whether the product

had arrived from the warehouse, any issues that arose and the plans to rectify the issues, status

updates and the final walkthrough.

Classification: Public

26

(j)

Mr. Leonard Burns, the Respondent

[127] The Respondent joined the Appellant in 1993. He was hired by Wayne Reid and not Mr.

Casey, as Mr. Casey suggested. He was not interviewed because Mr. Reid knew him from a

previous job. They did not have a specific conversation about his role with the Appellant. The

Respondent just assumed that it would be “everything” and that is what it turned out to be. He did

driving, library moves, file moves.

[128] The Respondent’s role and responsibilities changed over time and he did more installing,

ran some jobs, did driving and furniture moving. The Respondent described the Appellant as

having few formal rules and “no hats”. In fact, they were told to “lose the hat”.

[129] He had no power to discipline when he was on a job site. If anything major came up, the

project manager or dispatch would be advised and they would take the issue from there. He also

had no authority to hire or fire, promote staff, schedule hours of work or authorize vacation.

Scheduling and time off was the responsibility of dispatch or management. Once a Human

Resources person was hired, vacation requests went through her. He participated in performance

reviews only very informally. The Respondent had no signing authority.

[130] The Respondent does not recall anyone being hired as a supervisor right off the bat.

Usually, supervisors are promoted from within.

[131] With respect to the incident involving Mr. Celotto, the Respondent indicated that he had

asked Mr. Celotto what was in his backpack. Mr. Celotto replied that it was liquor. The liquor

was not sealed so the Respondent asked Mr. Celotto to get rid of it in the garbage. At that point,

the day was basically done so he told Mr. Celotto to go home. He told Mr. Celotto “either you

phone Wayne or I phone Wayne”, meaning that Wayne Reid would find out about this one way or

or another. He subsequently phoned Wayne and told him what happened and that was the end of

it as far as the Respondent was concerned. Wayne subsequently terminated Mr. Celotto. He did

not consult the Respondent before he did so. The Respondent found out later about the termination.

[132] In terms of how projects are run, the Respondent indicated that a client would phone and

then a salesperson would scope out the project and complete the bid. The sales manager would

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27

work with dispatch to figure out the equipment and crews needed to carry out the project. They

would determine the number of employees required on site. Dispatch would then communicate

with the supervisors as the people running the job. The Respondent would be informed by dispatch

to “tell the guys to do this and that”. The Respondent would then “do his stuff”, pack up the

equipment and head back to the warehouse.

[133] A typical day for the Respondent would be to go into the shop, get the paperwork and

equipment and then get the truck. He would then meet the other employees on site and if anyone

was missing, he would phone dispatch. He would then take the crew up, assign their tasks and

load up the truck. The Respondent was very hands on. If the flow kept going, he didn’t interrupt

too much. He would run around to see where he could be of help.

[134] The Respondent estimated that he would spend about 10% of his time on supervisory tasks

and the rest of the time, he would be in there working with the guys. If an issue arose, the

Respondent, as the supervisor, was responsible for addressing it. If the crew had questions, the

Respondent would answer them if he had the knowledge.

[135] On cross-examination, the Respondent agreed that he moved furniture, drove the trucks

but also delegated work and instructed workers at times. He indicated that he would scope out the

work only in the 10 minutes before the job. The primary scoping for the job was done by the

project managers. He would also do the walk-through with the clients and agreed that these would

take more than 10 minutes and could take hours.

[136] The Respondent agreed that he would meet with clients on his own or with the owner but

noted that others did that too. He recalls being introduced to clients as the site supervisor and

clients being told they could come to him.

[137] The Respondent agreed that he would check on the crew and monitor them to make sure

things were working smoothly. He would correct anything he saw that was wrong. However, he

didn’t walk around watching anyone in particular. He kept an eye out but was also working himself

at all times.

Classification: Public

28

[138] The Respondent agreed that he could provide input for particular workers on particular

jobs but that who was assigned to each job was ultimately management or dispatch’s call. Crew

members would not come to him to seek overtime approval. This call was made by dispatch or

the project manager. If a job was running long, the Respondent would call dispatch or the project

manager for advice and direction. Dispatch would dictate whether to stay until the job was done

or whether to tell the client that the crew would return to finish at another time.

[139] The Respondent acknowledged that he was called a supervisor and that other staff members

would have seen him as a supervisor. He indicated that he was likely called a supervisor for the

first time in 1994 or 1995, a couple of years after he started with the company. He cannot recall

whether his wages changed when he was called a supervisor.

[140] However, he was not the only person overseeing jobs and was not always in charge of the

projects he worked on. For example, there were house accounts for large clients which were

always run by the same supervisor. Mr. Remezoff, Ms. Fortin and Mr. Kennedy all had house

accounts and were the onsite supervisors for these jobs. When working on the house accounts, the

Respondent would not be the main supervisor but he might have directed the library or file moves.

[141] The Respondent attended the Wednesday morning meetings but the last one he recalled

attending was in December 2015 when they discussed a 10% across the board wage cut for the

company. He does not recall attending Wednesday morning meetings after that time. He recalled

the people present at the Wednesday meetings as the owners, dispatch, managers, supervisors and

even a client at one point. He agreed that he attended these meetings regularly for a time and

would provide his opinion if asked. The meetings were mostly pre-planning meetings for any big

weekend moves. They would discuss things like the scheduling of staff and any need to cover

vacations. Employees were also discussed at these meetings.

[142] The Respondent was never involved with the “business stuff” at the Wednesday morning

meetings. He had no input into the business end. That was all done by Ms. Reid and Mr. Brent

Reid. For example, no one had input into the 10% rollback for salaries – that was all Ms. Reid and

Mr. Reid’s decision.

Classification: Public

29

[143] The Respondent agreed that he was one of the most senior employees when he left and that

Wayne Reid had treated him as his “right hand man”. If Wayne asked his opinions on things, he

would provide them, but he could not tell Wayne what to do. He did not provide input on hiring

a specific driver or on hiring decisions in general. Wayne did ask the Respondent for feedback

on employees but in a “hallway” sense, not in a formal manner.

[144] A January 3, 2016 reference letter was put to the Respondent. The Respondent agreed that

he wrote the letter and that he had described himself when signing the letter as a Senior Supervisor.

He said he used that title because that was what was on the company web site. He did not tell the

owners to change his title on the website and thought of himself as a supervisor at that time. He

was not aware at the time, however, of his rights to overtime.

[145] The Respondent denied receiving profit sharing but acknowledged that he had received

bonus checks in the same amount every year. He kept his receipt of bonuses to himself but thought

that others were also receiving bonuses.

[146] The Respondent agreed that he had access to a company vehicle and the vehicle expenses

and maintenance were covered by the company. He identified 7 or 8 other individuals, including

Rob (an installer), Justin (truck driver), Mr. Remezoff and the project managers, who all had

company vehicles. They all had the same type of vehicle, a Toyota Sienna (minivan). He

described these as service vans which could be used to take people around to the different jobs.

He denied that only supervisors received company vehicles and pointed out that Rob and Justin

were not supervisors. He agreed that movers were not given company vehicles.

[147] The Respondent denied that he had authority to make purchases up to $1,000. He indicated

that $1,000 had never been mentioned to him as an expense limit. He understood, however, that

he could pay for things like oil changes, tire changes and things needed for the jobs and then submit

his receipts for reimbursement.

[148] The Respondent reported to Mr. Brent Reid who he described as being very hands-on, just

like his father, Wayne Reid. He would also be reporting “tons of things” to dispatch and the project

managers during a move. The Respondent agreed that employees would be reporting to him and

Classification: Public

30

that on certain jobs, they would be looking to him as a supervisor. He agreed that he trained staff

and helped new staff learn the ropes.

[149] The job description questionnaire was put to the Respondent on cross-examination. He

acknowledged completing the form in his handwriting and that it was a document seeking input

on his role. The Respondent worked with Barry Oakes to complete the document. Barry was

another supervisor and the Respondent would cover for him if he was away, if assigned to do so

by dispatch.

[150] Prior to July 2012, the Respondent was paid hourly and paid overtime at 1.5X his hourly

rate. In July 2012, the Respondent wanted to be on salary as he wanted more stability and

consistency in his income. Ms. Reid and Mr. Reid indicated that a move to salary would be

possible and his compensation was changed to a salary rather than hourly rate. He continued to

be paid overtime but at a rate of $25 per hour. When asked why he agreed to $25 per hour in

overtime, the Respondent indicated that he thought that “it was what it was”. He didn’t understand

at that time that there was an obligation to pay him overtime. He accepted the $25 per hour because

that is “what they gave me”.

[151] In February 2018, he asked for more overtime. At the time, Ms. Reid sent a memo to the

Appellant’s staff about changes they were making to be more consistent with labour laws. This

also included a link to information on employment standards. When he reviewed this material,

the Respondent came to understand that being on salary did not exempt him from being paid

overtime. He phoned Employment Standards to explain his situation and Employment Standards

suggested he was entitled to overtime. The Respondent understood that supervisors were only

disentitled from overtime if they were involved in hiring and firing and the management of the

company and if they didn’t do the physical work.

[152] When asked why he felt he was eligible for overtime even though he regarded himself as

a supervisor, the Respondent explained that he only called himself a supervisor up until the point

where he understood his Code entitlements better.

[153] The Respondent completed a Management or Supervisory employee questionnaire as part

of his Employment Standards complaint. On the questionnaire, he stated that he did not supervise

Classification: Public

31

other employees. When this was put to him, he explained that he directed other employees and

did not supervise them in the sense of hiring or firing. The Respondent also indicated that his

duties did not differ from those he supervised. He explained this statement by stating that his duties

were not different because he physically did the work like everyone else. He also indicated on the

form that others would perceive him as a co-worker and not a supervisor. He agreed that he had

other privileges like a company vehicle, but noted that others had that same privilege as well.

[154] In another questionnaire completed as part of his Employment Standards complaint, the

Respondent quantified the breakdown of his duties as 0% of his time spent on direction and

supervision of employees and 0% of his time spent on other work that is supervisory or managerial.

100% of his time was spent on work that was the same or similar to that of the other persons

supervised. On cross-examination, he acknowledged that he might change the 100% response now

to something less than 100%.

[155] The Appellant responded to the Respondent’s concerns by advising him he was a

supervisor and not entitled to overtime. This was the first time that the Respondent had heard this

message from the Appellant. There was no discussion of his overtime eligibility when he moved

to the salary structure in 2012. The Respondent noted that the supervisors on hourly pay (Darryl

Kennedy, Nicole Fortin and Ken Orr) all receive overtime at 1.5X their hourly rate. He knew that

they received overtime because they told him as much. Those that received the lesser amount of

overtime ($25/hour of extra pay) included Mr. Remezoff, Mr. Toole and the project managers, Mr.

Wahed and Rick.

[156] The Respondent enjoyed working for the Appellant and if they had been able to resolve

the overtime issue through discussion, the Respondent would still be working there, as far as he

was concerned.

(k)

Mr. Ken Orr

[157] Mr. Orr worked for the Appellant from November 1999 until 2017. He was an installer

and a supervisor. He worked with the Respondent very often and they are still good friends outside

of work.

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[158] He was paid hourly and received 1.5X his hourly rate as overtime. He did not receive a

pay increase as a supervisor. He indicated that he became a supervisor when he was put at the top

of the crew sheets. That is how you became a supervisor.

[159] Mr. Orr had 3 or 4 house accounts. He indicated that he would drive down in the truck and

“jump in” with his tools. On other jobs, he would supervise and “run the show”. Crew members

would see him as a supervisor.

[160] Mr. Orr indicated that anyone could be assigned as a supervisor. Usually a supervisor

would be a senior person, but it could also be a driver that was at the top of the sheet. Whoever

was on top was the supervisor. Mr. Orr indicated that the Respondent had reported to him on jobs

as the supervisor and that this could occur as often as 2 times per week. He would then similarly

report to the Respondent as supervisor 1-2 times per week. The Respondent would also report to

other supervisors such as Barry Oakes or whoever the leader was that day. This would possibly

occur as often as every 2^ndor 4^thjob.

[161] As a supervisor, he could not hire and fire but he could send people home from the work

site. To Mr. Orr’s knowledge, the Respondent likewise did nor hire or fire or promote or demote

but he could discipline in the sense of sending someone home from the job site.

[162] Mr. Orr described the Respondent as very hands on and indicated that he would bring his

own tools to the job site.

[163] The Respondent did not speak to Mr. Orr about not being paid 1.5X for overtime and Mr.

Orr did not know he was in that situation.

(l)

Mr. Barry Oakes

[164] Mr. Oakes joined the Appellant in 1996 and retired in 2017. He started as an installer and

was an Installation Manager most recently. His pay did not change when he became an installation

manager although he received raises every couple years except for when there was an across the

board 10% pay reduction.

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[165] Mr. Oakes worked with the Respondent and described him as fulfilling the roles of Lead

Hand, driver and file packer. The Respondent would be in charge of some moves but also drove

the truck quite often. Mr. Oakes also acted as a Lead Hand. He agreed that, as Lead Hand, he

would direct staff and communicate with the client. Coordination with the client was usually done

by the salesperson. He would not, as Lead Hand, walk around and watch workers but would keep

an eye out as he was working. He would correct problems if he saw them.

[166] Mr. Oakes described the Respondent as very hard-working and hands-on. He would jump

right in with the elevator and the dollies. Mr. Oakes and the Respondent would supervise each

other depending on the job. Mr. Oakes did not know how often the Respondent was assigned as

supervisor.

[167] Mr. Oakes felt that “Lead Hand” was a more apt description than supervisor because the

supervisor just ran the show without any input into staffing, etc. They just picked up the paperwork

and carried on. Supervisors maintained contact with the client while on site and moved the team.

He felt in the grand scheme that supervisor was not the right name for what they did – it was just

what dispatch called it. It could have been anyone’s name listed there as there were 6 or 7

employees who were knowledgeable enough to run the jobs. It was important to give the younger

guys a chance to run jobs as well. As they got more experience, they would get more

responsibility.

[168] Mr. Oakes described the supervisors as Mr. Waked, Mr. Brent Reid and Rick. These were

the guys selling the jobs who deal with customers and staff the jobs.

[169] Mr. Oakes confirmed that the Respondent did not have the authority to hire or fire, grant

vacation, demote or promote, carry out employee reviews (he could provide input but was not

involved in the review) or schedule. He did not know if the Respondent had ever sent anyone

home from shift, but Mr. Oakes had, if there was drinking on the job, for example. He knew he

could do this because it was common sense if someone was going to embarrass the company. Mr.

Oakes testified that it was not only supervisors who could send workers home from the job site but

anyone “with common sense” could, including other workers.

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[170] Mr. Oakes was a paid a salary and did not receive overtime but was paid more for working

in excess of 8 hours per day. He received golf trips and extra vacation so felt well compensated

but he did not receive 1.5X hour as overtime pay. Mr. Oakes received two payments under the

bonus program.

[171] Mr. Oakes attended the Wednesday morning meetings where they discussed upcoming jobs

and where they would get the manpower, etc. They did not discuss the business of the company

or who to hire or fire. He recalled the ownership, Ron, the Respondent and dispatch being present

at the Wednesday morning meetings. The Respondent would have been there because he was

invited. The more senior people is how he would describe attendance at the meeting. Wayne Reid

asked the group for their opinions at these meetings partly out of friendship. He could have asked

for opinions on issues like who would be on the crews, employee performance and who should get

more hours. Wayne would also ask the sales staff what was going on as that is who clients would

normally contact with performance concerns.

Submissions

(a)

Appellant

[172] This case is about the nature of supervisory duties and how they play out in a small, family-

run business. This is not a company where people can stand around. Even supervisors have to

roll up their sleeves but that does not mean they are entitled to overtime pay.

[173] The law governing the appeal is section 22 of the Code and section 2(1) of the Regulation.

Section 22 sets out the general rule for overtime entitlement and section 2 of the Regulation

prescribes who is exempt from the general rule.

[174] The Appellant cautioned the Appeal Body against making false conclusions. It cannot be

concluded that the Respondent is not a supervisor because he was paid hourly and received 1.5X

for overtime. This is not the legal test. The Appellant could provide greater benefits under section

3 of the Code and this is what it did. As noted by Brent Reid, they paid the supervisors what they

wanted to be paid. The supervisors wanted more and they were happy to pay them more as valued

senior employees. The overtime was simply a perk.

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[175] The Appellant took into account the Respondent’s input and gave him a salary when asked.

Non-supervisors and non-managers were not given the option to have a salary. This is consistent

with Ken Orr’s evidence that only the supervisors and the most respected employees were given

the salary option and the additional compensation.

[176] The Respondent was represented externally and internally as a supervisor. A former client

described him as the leader and point person on site. The Appellant’s marketing materials, bid

proposals and emails with clients reference the Respondent as a supervisor.

[177] The Respondent knew for years that he was a supervisor. He wrote a reference letter in

2016 and signed it as senior supervisor. He delegated work. His stance on whether or not he was

a supervisor only changed when he learned he was not entitled to overtime.

[178] The Respondent’s duties included coordinating work, providing input on hiring, firing and

employee performance, securing attendance at the work site and sending employees home from

the work site.

[179] He was described on internal company documents such as the Reviews Policy as a

supervisor and had a role in employee management under the Misconduct Notification/Misconduct

Write-Up Policy and Procedure.

[180] Ten current and former employees gave evidence that they were supervised by the

Respondent and saw him as a supervisor. As testified by Barry Oakes, titles were not relevant.

There was always a core group of senior staff that could supervise and run the job. The evidence

demonstrates that clients knew who to talk to, dispatchers knew who to make supervisor and

employees knew who to go to.

[181] In terms of the jurisprudence, the Code does not set out a definition of “supervisor”. In

Sunterra Quality Food Markets (Calgary) Ltd. v. Tummonds, 2002 45587 (AB ESU)

[“Sunterra”], the dictionary definitions were used to define manager as “one who has charge of

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corporation and control of its business or its branch establishments, divisions, departments, and

who is vested with a certain amount of discretion and independent judgement”. Supervisor was

defined as “a surveyor or overseer…in a broad sense, one having authority over others, to

superintend and direct”. The Appellant submits that in Sunterra, the duties described were very

similar to those that the Respondent ascribed to himself in the present case and the employee in

Sunterra was found to have acted as a manager or a supervisor.

[182] In Sunterra, the employee set the hours of work for the employees in his department,

changed the hours of work, ordered inventory, met weekly with and dealt with suppliers, made

recommendations on new products and merchandising, trained staff, recruited and recommended

new employees, made recommendations on job applicants, and attending and participated in

monthly management meetings. These were determined to be matters of a supervisory or

managerial nature and are similar to the Respondent’s functions in the present case.

[183] In the present case, the Respondent did have authority over other employees. He ran jobs,

implemented policies on site and conducted informal performance reviews. He got paperwork,

delegated tasks and directed the crew. He took attendance and contacted the dispatcher if staff

were missing. He could shorten or lengthen the shifts if jobs ran long. The Respondent does not

deny that he oversaw jobs or that he identified himself as a supervisor or that other employees saw

him as a supervisor. He reported directly to the owner and called the owner regarding Mr.

Celotto’s misconduct in order to preserve the client relationship. He had input on the make-up of

the crew for each job and received bonus checks and a company vehicle. His expenses were

reimbursed. He was paid more than the other employees. Both Wayne Reid and Brent Reid

considered the Respondent to be a “right-hand man”.

[184] There is no question that the Respondent’s duties were supervisory in nature and that he

was employed in a supervisory role. Everyone had to pitch in to get things done but this was

incidental to his main role as supervisor. When the Respondent described his day, he described it

as a supervisor and not as a driver or mover. His instinct was that he was a supervisor.

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[185] The case of 1015714 Alberta Ltd. o/a Stoney Convention Inn v. Cross, 2004 55182

(AB ESU) [“Cross”] directs the Appeal Body to consider the nature of the work and the proportion

of time spent doing that work. If the non-supervisory functions are incidental or subordinate to

something more important, then the supervisor will be exempt from overtime.

[186] In Cross, the employee was found to be a supervisor. Cross, like the Respondent, was

responsible for managing equipment and supplies. Cross also carried out the same functions as

the workers as it was his duty to ensure that all of these jobs were done and in the absence of

adequate help, he would carry them out himself.

[187] It is clear that the Respondent’s primary role was to oversee the work and ensure that the

client was happy. Just because the supervisor works with the crew does not mean that he is not a

supervisor. In addition to working with the crew, the Respondent arrived earlier at the client site,

communicated with the client, obtained materials, coordinated with staff and dispatch, organized

the project and directed the crew and ensured the job was completed properly. When he was

working with the crew, he was overseeing and training. It was not his primary role to work

alongside the crew. Once he was at a client site, the Respondent did not require any further

authority from others.

[188] Mr. Waked testified that when he was a supervisor, 85% of his time was spent on

supervisory tasks.

[189] Ike Janacek, James Remezoff and the dispatchers all testified that the Respondent was

rarely the driver and most often the supervisor. Even the owners were supervised by the

Respondent and no one would argue that they are not managers.

[190] Petersen Traffic Lines v. Shirley, 2006 46759 (AB ESU) [“Petersen”] sets out two

requirements to be exempt from overtime. The first relates to the capacity of the employee and

the second relates to his duties. Where the primary duties of a “supervisory” employee consist of

work similar to that performed by other employees who are not in a supervisory capacity, the

employee is not exempt. In Peterson, the employee was found to be employed in a supervisory

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38

capacity but his primary duties consisted of paint truck driving. As these duties were not incidental

to his position as crew leader, he was not exempt from overtime. The result in Petersen is

distinguishable here because the Respondent’s primary role was supervision and he only pitched

in where needed. The Respondent did not act primarily as a mover/driver. No one in the

Appellant’s small company was too far removed from the day-to-day work. The fact that everyone

pitched in did not entitle everyone to overtime. The Appellant further submits that a review of the

duties in the Petersen case demonstrate that the Respondent’s duties were supervisory in nature.

[191] The Appellant submits that the Respondent’s cases are distinguishable. In PWM Loss

Prevention Services Inc. v. Turner, 2012 32317 (AB ESU) [“PWM”], the employee made

a verbal report to her supervisor regarding a fellow employee’s attire. She was directed to

complete an Employee Warning Letter, sign it and present it to the employee. The other employee

refused to acknowledge the warning and no further steps were taken. The employee was ultimately

found not to be a supervisor. By contrast, the Appellant submits that the Respondent had a great

deal of authority to discipline and his influence led to the decision to terminate Mr. Celotto’s

employment. He did not need prior approval to send Mr. Celotto home. This action could be

taken by normal employees. If Mr. Celotto was the Respondent’s equal, then the direction to go

home would have no weight.

[192] In William Hnidan o/a Dirtworks v. Larente, 2004 55164 (AB ESU), [“Dirtworks”]

the employee as held not be to a supervisor as he worked under the direct supervision of the

employer. By contrast, at the client sites, the Respondent did not work under anyone’s supervision.

He coordinated with dispatch and ensured the project was on track.

[193] The employee in The Great Canadian Roofing Corporation v. Lafleur, 2004 55163

(AB ESU) [“Lafleur”] was a roofer who was sent to inspect the roofing work of other employees.

It was his duty to report inferior workmanship and point it out to the roofer in question but he did

not plan, organize, control, direct, administer or conduct any of the affairs of the company by

himself. This is distinct from the Respondent’s role as he organized, planned and directed moves.

Clients coordinated with him and he was part of the leadership group. He was responsible for the

crew’s work on site.

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[194] 983131 Alberta Ltd. o/a A-1 Septic Rentals v. Lapointe, 2010 49519 (AB ESA)

[“Lapointe”] can be distinguished as the Respondent had significant influence on the owners and

management, he attended business meetings, was identified as senior staff and disciplined

employees.

(b)

Respondent

[195] The Respondent characterized the main issue before the Appeal Body as whether or not

the Respondent was employed in a supervisory capacity. The Respondent submits the assertion

that he was employed in a supervisory capacity flies in the face of the evidence. There is no

evidence that the Respondent had a “great deal of authority” or that he had significant influence

on hiring, firing or promotion decisions. The only scant evidence of discipline is that the

Respondent sent Mr. Celotto home from the work site. There is no other evidence of the

Respondent disciplining any other employees in his 25 years with the company. Why would the

Respondent involve Wayne Reid if he had the authority to discipline?

[196] It is not accurate to say that the Respondent committed the company financially.

Submitting expense receipts for truck or tire repairs is a far cry from “committing the company

financially”.

[197] This is simply a case of a good, hard-working man who knew his ins and outs. He took

instructions from many people. He himself did not have house accounts and if he was working at

those client sites, he took instructions from the supervisors there.

[198] The Appellant is urging the Appeal Body to draw faulty, bold conclusions. The Appellant

is trying to get out from under its minimum obligations under the Code simply by slapping on a

“supervisor” title.

[199] The Respondent submits that the history between the parties is very important here and

particularly how they conducted themselves before lawyers got involved. It is clear that the

Respondent was paid 1.5X his hourly rate as overtime prior to 2012, although the Appellant now

tries to characterize that pay as “extra pay”, “additional pay” or “extra compensation”.

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[200] In 2012, the Respondent was placed on salary and the Appellant took advantage of this

change in order to decrease his overtime pay to $25 per hour. The Respondent did not challenge

this as he thought that salaried employees were not entitled to overtime. Brent Reid also testified

that he held this belief but this ignorance cannot be allowed to confuse the assessment. All of

Nicole Fortin, Ken Orr and Darrell Kennedy were paid overtime as supervisors.

[201] Finally in 2018, the Respondent was presented with a contract that was compliant and

offered him 1.5X in overtime pay. But, by that point, he had been underpaid in overtime since

2012. He was told at this point for the first time in 25 years that he was a supervisor and not

entitled to overtime. He spent almost half his life working for the Appellant yet had to fight tooth

and nail for his Code entitlements.

[202] The Respondent contends that the Appellant is confusing the fact of the Respondent’s

seniority and experience in the company with being a supervisor. The Respondent worked well

with other employees and it is natural that they would defer to him because of his seniority and

knowledge, but this does not make him a supervisor. He had an edge over the other employees

because of his loyalty, experience and longevity but this does not make him a supervisor.

[203] Mr. Reid’s evidence was that the Respondent did not have the power to punish anyone and

that dispatch did the scheduling. Mr. Waked confirmed supervising the Respondent. Mr. Orr

testified that the Respondent reported to whoever was listed as supervisor on the crew sheet. The

evidence is clear that it is the dispatcher who runs the show in terms of assigning work. The

dispatcher chooses who is the supervisor. If the Respondent was truly a supervisor then

scheduling, disciplining, and supervising should be his duties most of the time.

[204] The evidence is unclear as to what position the Respondent was hired into or who even

hired the Respondent. Mr. Casey testified that he hired the Respondent while the Respondent

states he was hired by Wayne Reid. This conflict should be resolved in favour of the Respondent’s

evidence. The only one who can address the gap insofar as the position that the Respondent was

hired into is the Respondent himself. The evidence was equally unclear as to when the Respondent

became a supervisor. This ambiguity should be resolved in favour of the Respondent.

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[205] The Respondent also pointed out that the Appellant had produced a sampling of crew sheets

but the only crew sheets produced were ones where the Respondent was listed as a supervisor. No

crew sheets were produced to show the Respondent listed as a driver or a crew member although

the evidence was clear that such sheets would have existed. The Respondent did not have the

ability to produce documentation in the custody and control of the Appellant.

[206] In terms of the relevant legal principles, the law is clear that an employee’s title is

irrelevant. Whether the Respondent presents himself as a supervisor is also irrelevant. The

Respondent only realized the legal implications of the term “supervisor” in 2018. Entitlement to

overtime pay depends on what the Respondent actually did.

[207] The Respondent did not plan, control, direct, or organize the business of the company. He

did not set hours. He did not hire or fire. He did not conduct performance assessments. He did

not grant vacation and he himself had to request vacation. Directing employees on the job site

does not amount to supervising them. The focus must be on the Respondent’s primary duties, not

incidental tasks.

[208] The Respondent was performing the same set of duties as the employee in 1021462 Alberta

Ltd. o/a French Meadow Artisan Bakery Café v. Chow, 2004 55186 (AB ESU) [“French

Meadow”] and in that case, the employee was not found to be a supervisor. In French Meadow,

the employee was not involved in hiring or firing and was not consulted on things related to the

business. French Meadow also confirms that being paid by salary does not, on its own, disentitle

employees to overtime.

[209] In Lapointe, the employee was not held to be a supervisor because she was not hiring or

firing, conducting performance appraisals, disciplining, directing the company’s goals or attending

business meetings. This is the same as the Respondent’s situation. While he attended Wednesday

morning meetings, the evidence was clear that these meetings were intended to address practical

issues and not set the strategic direction for the company. In any event, the Respondent was not

even part of these meetings after 2015.

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[210] In Cross, the employee was found to be a supervisor because he was responsible for setting

hours, granting time off and vacation, banking hours for employees for overtime, preparing

budgets and upholding occupational health and safety obligations. By contrast, the Respondent

had none of these authorities.

[211] In LaFleur, the employee inspected the roofing work of other employees but this was not

held to amount to be akin to organizing, directing, or controlling the activities of the company.

Sunterra is distinguishable in that the employee in question there had the ability to set and change

the hours of work for employees. The Respondent could only extend the time at the job site by ½

hour and then would need to consult dispatch.

[212] The assertion that the Respondent was always responsible for supervision flies in the face

of the evidence. Other than the self-serving documents and self-serving testimony of the

Appellant, the evidence supports no other indicia of supervisory work by the Respondent. To the

extent that sending Mr. Celotto home is evidence of supervision by the Respondent, anyone who

cared about the Appellant’s reputation and integrity would have done what he did.

[213] While the Respondent received some bonus checks, so did others in the company. The

Respondent did not hold shares in the company and was not entitled to profit sharing. These were

simply discretionary bonuses. Similarly, while the Respondent was provided with a company

vehicle, so were other employees.

[214] The Respondent had seniority, capability and loyalty but the major trappings of what

constitutes a supervisor are glaringly absent. Any conclusion that the Respondent is a supervisor

is flawed and the Respondent is entitled to a dismissal of the appeal.

(c)

Appeals Officer

[215] Employment Standards considers a number of factors when assessing if an employee is a

supervisor. These include the authority to hire and fire, approve hours of work, sign off on wage

increases or vacations, discipline employees and issue formal reprimands. The evidence is clear

here that the Respondent had none of these authorities.

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[216] Coordinating and directing the work of junior employees does not amount to the

Respondent being a supervisor. This type of work is more like a “Lead Hand”. Doug Casey

testified that there was no significant difference between the work of a “Lead Hand” and a

supervisor. The Appeals Officer pointed out that Mr. Casey was one of the few witnesses who

was not a current employee.

[217] While it is clear that the Appellant valued the Respondent’s input and influence, many

people can provide input and influence. This is not a strong indicator of a supervisory function.

If mere “influence” were a criteria of supervisory duties, this would improperly expand the

overtime exemption and make “supervisor” too broad a category. Rather, the Code is remedial

legislation and should be interpreted to extend its protections as broadly as possible. Turning a

“Lead Hand” role into a supervisory role would expand the exemption too broadly and in a manner

that is inconsistent with the purposes of the Code.

[218] Further, the fact that the Respondent agreed to his compensation scheme in 2012 is not

relevant as the parties cannot contract out of the minimum entitlements set out in the Code.

(d)

Reply argument of the Appellant

[219] Section 2(1) of the Regulation provides exemptions for managers and supervisors. In

setting out these two clear categories, the Legislature has stated that we should not be treating

managers and supervisors as the same thing. A key principle is that the Legislature does not waste

ink. The Appellant asserts that some of the cases before the Appeal Body may focus more on the

criteria to discern when someone is a manager but the distinction between supervisors and

managers remains important. In certain of the cases, no clear distinction between managers and

supervisors is highlighted. However, it is important for the Appeal Body to be mindful of the

distinction. There may be situations where an employee would not meet the criteria to be

considered a manager but would still meet the criteria to be a supervisor.

[220] Titles do not matter as the law looks at the employee’s duties. No one besides Mr. Casey

described the Respondent as a Lead Hand and even Mr. Casey conceded that Lead Hands would

not supervise large crews.

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[221] The Respondent’s case is that he just pitched in and worked alongside the workers. But if

the Respondent was not a supervisor, why did he direct and coordinate the work? Why didn’t he

ask himself “why am I doing this? I am not a supervisor”. While everyone pitched in, there was

still a core group of 6-7 senior staff who were capable of working as supervisors.

[222] In addition to Mr. Celotto, there was evidence from Mr. Remezoff that the Respondent sent

him home after he got in a verbal altercation with Mr. Waked.

[223] To the extent that the Respondent was concerned about Mr. Celotto being rehired and told

Mr. Remezoff as much, there is no evidence that the Respondent went to management with his

concerns.

Decision

(a)

Relevant Statutory Provisions

[224] The sections of the Code relevant to this appeal are as follows:

3(1) Nothing in this Act affects

(b) an agreement, a right at common law or a custom that

(i) provides to an employee earnings, leaves of the types described in

Divisions 7 to 7.6 or other benefits that are at least equal to those

under this Act, or

(ii) imposes on an employer an obligation or duty greater than that under

this Act.

(2) If under an agreement an employee is to receive greater earnings or leaves of

the types described in Divisions 7 to 7.6 than those for which this Act provides,

the employer must give those greater benefits.

21 Overtime hours in respect of a work week are:

(a) the total hours of an employee’s hours of work in excess of 8 on each day

in the work week; or

(b) an employee’s hours of work in excess of 44 hours in the work week,

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whichever is greater, and if the hours in clauses (a) and (b) are the same, the

overtime hours are those common hours

22(1) An employer must pay an employee overtime pay for overtime hours at an

overtime rate that is at least 1.5 times the employee’s wage rate.

[225] The sections of the Regulation relevant to this appeal are as follows:

2(1) Section 14(1)(a) of the Act (relating to the keeping of employment records for

regular and overtime hours of work) and Part 2, Divisions 3 and 4 of the Act

(relating to hours of work, overtime and overtime pay) do not apply to

(a) an employee who is employed in

(i)

a supervisory capacity,

(ii)

a managerial capacity, or

(iii) a capacity concerning matters of a confidential nature

and whose duties do not, other than in an incidental way, consist of work similar to

that performed by other employees who are not so employed.

(b)

(i)

Analysis

Scope of the appeal

[226] The main issue before the Appeal Body is whether or not the Respondent is employed in a

supervisory capacity such that he is exempt from overtime pay in accordance with section 2(1) of

the Regulation.

[227] At the outset, it is important to note that there are three grounds in section 2(1) of the

Regulation on which an employee may be exempt from overtime: (i) a supervisory capacity; (ii) a

managerial capacity, or (iii) a capacity concerning matters of a confidential nature.

[228] None of the parties strenuously argued that the Respondent would be caught by the

managerial capacity or the confidential matters exemption. The key issue of disagreement is

whether or not the Respondent was employed in a supervisory capacity.

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[229] Accordingly, the Appeal Body does not propose to delve into the managerial or

confidential matters exemptions in any significant detail. However, the Appeal Body is satisfied

in any event that neither of these exemptions would apply to the Respondent. To borrow from the

definition of manager used in Sunterra, the Appeal Body finds that the Respondent is not “one

who has charge of corporation and control of its business or its branch establishments, divisions,

departments, and who is vested with a certain amount of discretion and independent judgement”.

[230] The evidence is universal that the Respondent had no independent authority to hire, fire,

promote or demote employees. He did not have authority to approve wage increases. He did not

set the employees’ schedules as this was carried out by dispatch. He did not carry out performance

evaluations, although he could provide input into employee performance. The Respondent was

not involved in setting the strategic direction of the company or making major decisions affecting

the company (such as the 10% wage cut). The Respondent could not commit the company

financially. While he could submit receipts for certain expenses such as vehicle maintenance,

there was no evidence that he could commit the company in any significant financial manner such

as by setting bid rates for jobs or making major equipment purchases.

[231] Similarly, the evidence of the Respondent’s exposure to confidential information included

his presence at the Wednesday morning meetings where employee performance was discussed and

the fact that he was entrusted with delivering Records of Employment and pay cheques. The

Appeal Body does not find that having exposure to this type of information would bring the

Respondent within the confidential matters exemption. In the view of the Appeal Body, for this

exemption to be triggered, the employee would have to have a substantial degree of access to

confidential information and their job function would need to consist of the use or preparation of

such information. The Appeal Body does not find that this is the case for the Respondent.

[232] The Appellant has urged the Appeal Body to be mindful of the distinction between

managers and supervisors. The Appeal Body accepts that working in a “supervisory capacity” and

working in a “managerial capacity” are listed in section 2(1) of the Regulation as separate and

independent grounds for exemption from overtime pay. As noted in Sunterra, the Legislature must

have intended a distinction or it would not have included both in the exemption.

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[233] Assessing what are supervisory duties as distinct from managerial duties is not a clear-cut

exercise. There appears to be little guidance in either the Code or the decisions made under the

Code on this issue. As pointed out by the Appellant, many of the cases tend to analyze the issue

by using the same indicia to determine whether an employee is a manager or supervisor without

necessarily turning their minds to the distinction between the two roles. For example, in Lapointe,

the same criteria are applied to determine that the employee was not, in fact, a supervisor or a

manager. A similar approach was taken in PWM. Further, in the checklist that the Respondent

was asked to complete as part of his Employment Standards complaint, there is no distinction made

in terms of which factors point to the presence of a managerial role versus which factors point to

the presence of a supervisory role. The questionnaire simply notes that “the more “yes” answers

you check, the greater the likelihood that the employee is working in a managerial or supervisory

role.”

[234] Ultimately, this may simply be a reflection of the fact that circumstances will vary in each

particular case and the relevant factors need to be applied flexibly in each case to determine

whether an employee is a supervisor or a manager. That said, the Appeal Body is mindful that its

task is to determine whether or not the Respondent worked in a supervisory capacity. The Appeal

Body accepts that an employee can be found to be working in a supervisory capacity without

having to find all the same criteria that would normally be present when an employee is working

in a managerial capacity.

[235] Prior to turning to that assessment, there are some additional principles that should guide

the Appeal Body’s task. First, the onus is the Appellant to establish that the Respondent fits within

the overtime exemption set out in section 2(1) of the Regulation. Second, as the overtime

exemption is an exception to the minimum standards set out in the Code, it must be construed

narrowly. As noted in Kashruth Council of Canada / Le Conseil Cacherout Du Canada v. Director

of Employment Standards, 2017 49936 (ON LRB) [“Kashruth”] at paragraph 10:

There is no dispute that the section in the Regulation, as an exemption to the minimum

standard, must be interpreted narrowly having regards to the purposes of the Act.

(See Machtinger v. HOJ Industries Ltd., 1992 102 (SCC), [1992] 1 S.C.R.

986 and Rizzo & Rizzo Shoes Ltd. (Re) 1998 837 (SCC), [1998] 1 S.C.R. 27).

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[236] And similarly in Andrew Stevens v 2414407 Ontario Inc. o/a Louis Cifer Brew Works and

2230310 Ontario Inc. o/a Stout Irish Pub, 2019 75740 (ON LRB) at paragraph 4:

As was stated in 2253477 Ontario Inc. o/a Apollo Convention Centre 2016

24797 (ON LRB):

15. The Board has frequently noted that exemptions to the minimum rights contained

in the Act are to be interpreted narrowly. This policy is consistent with the purposes

of the Act, which provides minimum terms and conditions of employment for the

protection of all employees, many of whom are vulnerable to the power, as paymaster

and job provider, wielded by the employer.

[237] Third, the Appeal Body accepts and the parties likewise agree that job titles are not

determinative of whether or not someone is a supervisor. What is relevant is the tasks performed

by the employee and whether those tasks are supervisory in nature: Sunterra.

(ii)

Were the Respondent’s duties supervisory in nature?

Employment history

(A)

[238] The Appeal Body accepts that in the early days of the Respondent’s employment, there

was little in the way of formal job titles, job descriptions, employment agreements, offer letters or

other matters of that nature. This is not surprising in the context of a small, family-run business.

To this extent, the Appeal Body accepts that the Respondent was not hired in any formal way as a

supervisor and it is likely that, as described by the Respondent, there was not a specific

conversation about his role and he was hired to simply do what the company at any given time.

[239] It appears that, over time, as the Respondent, gained more experience and seniority with

the company, he would be assigned the supervisor role by the dispatcher so that he would be the

one “running the jobs”. It does not appear to the Appeal Body that there was ever a specific point

in time where the Respondent was officially and formally designated “a supervisor”. Rather, it

seems to be that he carried out this role over time as it was assigned the role by the dispatcher.

[240] There is no dispute that, prior to 2012, the Respondent was paid an hourly rate and 1.5X

his hourly rate as overtime. Ms. Reid conceded that, in 2012, she knew that supervisors weren’t

entitled to overtime. When asked then, why the Respondent was receiving overtime if he was a

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supervisor, she fairly surmised that the issue probably was just never looked at. The Appeal Body

accepts that this may well be the case in the context of a small, family-run business.

[241] Similarly, when the Respondent was moved to a salary in 2012, the Appeal Body accepts

that there was some confusion on the Appellant’s side in terms of overtime entitlement. Mr. Reid

confirmed that he understood at the time that salaried employees were not entitled to overtime. In

the face of this, the Appellant was still willing to pay the Respondent for extra time worked, but

the pay was described as “additional compensation” rather than overtime. Ms. Reid stated that the

Respondent was paid “additional compensation” at this time out of loyalty and given the nature of

their industry.

[242] As late as February 2018, the Appellant presented offers to the Respondent where he could

be paid on a hourly basis with 1.5X his hourly rate as overtime or on salary with $25/hour as

“additional compensation”. This was done even though Ms. Reid knew supervisors were not

entitled to overtime.

[243] However, the Appeal Body does not necessarily regard this as a concession by the

Appellant that the Respondent was not a supervisor. Rather, as explained by both Ms. Reid and

Mr. Reid, the Appeal Body accepts that the Appellant wanted to compensate its employees well

and keep them happy especially in light of what Ms. Reid described as a “grueling industry”. At

the time of making these decisions, it is unlikely that the Appellant addressed its mind to the

implications of overtime compensation in the context of s. 2(1) of the Regulation.

[244] Similarly, the Appeal Body finds that the Respondent referred to himself as a supervisor.

He signed reference letters as a “Senior Supervisor” and completed internal company forms

describing himself as a supervisor. However, as with the Appellant, the Appeal Body is not

prepared to hold this against him now in the context of this appeal. It is plain from the evidence

that the Respondent was not aware of the interplay between supervisory duties and overtime

entitlement until the making of his complaint under the Code. As noted in Bavarian Link Meats,

Bavarian Link Meat Products Limited operating as Bavarian Link Meat Products Ltd v James

Brown, 2016 17248 (ON LRB) [“Bavarian”] at paragraph 23:

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The Employer argued that Mr. Brown, in fact, saw himself as a manager. It relied

upon the fact that Mr. Brown signed various HACCP documents, describing his title

as, “Establishment Representative, HACCP Coordinator and Maintenance

Manager.” The manner in which a party describes a position is not determinative,

particularly when, as in the instant case, that description is inconsistent with the

realities of the situation.

[245] The Appeal Body is satisfied that leading up the Respondent’s complaint, the parties were

not fully aware of their rights and entitlements under the Code respecting overtime and supervisory

duties. It appears that the parties understood (erroneously) that compensation arrangements (i.e.

whether hourly or salaried) were the primary driver for overtime entitlement.

[246] In other words, the Appeal Body does not consider the fact that the Appellant paid a

“supervisor” overtime as determining that he is not a supervisor nor does it consider the fact that

the Respondent referred to himself as a Supervisor as determining that he is. Rather, the Appeal

Body will focus on the Respondent’s tasks and duties to make that assessment.

B. The Respondent’s duties

[247] The Respondent described his “typical day” as going into the shop, getting the paperwork

and equipment and driving the truck. He would then meet the crew and assign them their tasks.

If issues arose, he would address them and if the crew had questions, he would do his best to

answer them. He was very hands-on and would work alongside his crew in carrying out tasks. He

would complete a “walk-through” with the client when the job was complete. The Respondent

also met with clients in advance of the job either on his own or with a project manager.

[248] This general description of his typical day was supported by the evidence of Mr. Reid who

summarized the duties as “doling out tasks and making sure the job was well done” and by Mr.

Waked who described the role as “going to see the client, getting lists and doing everything on the

lists”. Mr. Waked also stated that the crew takes direction from supervisors on what to do and

where to go and supervisors do “everything” including pushing dollies and jumping from place to

place to make sure the job is running smoothly. Similarly, the role was described by Mr. Janacek

as “running the jobs they were on, whatever was needed happened, and doing a walk-though with

the client.” Mr. Remezoff referred to the role as “the first line of contact with clients – he would

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pass on information to the workers, make sure duties were carried out and deal with any conflicts

that arose.” Likewise, Mr. Casey agreed that a fair summary of the role was to talk to the client

and perform the work orders. Mr. Hardman described the role as “coordinating with the client,

running the crew, dividing up the work and overseeing the job and outcome”. Mr. Oakes similarly

described the role as “picking up the paperwork and carrying on. Supervisors maintained contact

with the client while on site and moved the team.” Ms. Reid, while putting different emphasis on

some of the Respondent’s duties, also described the Respondent’s role as attending at the client

site with a list and dividing the tasks.

[249] Other aspects of the Respondent’s duties raised during the hearing in support of the notion

that the Respondent is a supervisor were his meetings with the clients, his level of influence, his

attendance at Wednesday morning meetings, his receipt of a company vehicle and “profit sharing”,

his ability to commit the company financially, the fact that he reported directly to the owners and

his authority over the crew.

[250] With respect to the meetings with the clients, both Mr. Reid and Mr. Waked testified that

he would visit client sites with the Respondent and would introduce him as the job supervisor. The

Respondent acknowledged that he met with clients, either with the project managers or by himself.

However, he also noted that his initial scoping of the work was only in the 10 minutes before the

job. The Appeal Body accepts and finds that the Respondent was introduced to clients as the onsite

supervisor and that clients viewed him as such. However, it does not appear to the Appeal Body

that the Respondent had any significant role in dealing with clients to plan or cost the job. He

would simply pick up the paperwork at the client site and execute the move in accordance with the

task list. The Appeal Body finds support for this conclusion in the significant number of emails

that were produced by the Appellant which show that, prior to the job, client contact was with

either Mr. Reid or Mr. Waked.

[251] The evidence was clear and universal that the Respondent had no ability to hire, fire,

promote, or demote employee, no authority to changes their wages and did not conduct

performance assessments. However, it was argued that he held significant influence in these areas.

It seems to the Appeal Body that the Respondent’s influence was somewhat overstated. With

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respect to Mr. Celotto, there is no evidence that the Respondent advised or influenced Wayne Reid

to terminate Mr. Celotto. The Respondent simply reported to Mr. Reid what had occurred that day

on site. After that, the Respondent had no dealings with Mr. Celotto or what happened next. Mr.

Reid is the one who decided on the course of termination.

[252] Similarly, it was argued that the Respondent’s input was sought on hiring and on employee

performance. However, there was no evidence before the Appeal Body of any successful hires

that had been recommended or influenced by the Respondent nor is there any specific evidence of

how the Respondent influenced performance reviews either negatively or positively. The Appeal

Body accepts that the Respondent might have been able to exert influence but there was little

evidence put before the Appeal Body showing how that influence was exerted or how it impacted

company operations.

[253] The evidence about the Wednesday morning meetings was largely consistent. For the most

part, the meetings were held to discuss upcoming jobs, how to staff them and any employee

performance concerns. Ms. Reid also stated that employees salaries or wages were not discussed

at these meetings in the presence of the Respondent but that wage increases in general might be

discussed. There was no evidence or even suggestion the business of the company was discussed

in the sense of strategic planning, new initiatives, competitive pressures or in sense of overall

control and direction of the business of the Appellant. The Appeal Body is inclined to Mr. Casey’s

characterization that supervisors attended these meetings “just for general knowledge” so that

everyone would be in tune with what would be happening week-to-week. Further, the

Respondent’s uncontradicted evidence was that he did not attend Wednesday morning meetings

after November 2015.

[254] There is no dispute that the Respondent has the use of a company vehicle. Ms. Reid

testified that movers are not given company vehicles. However, the evidence is not clear that only

supervisors are given company vehicles as a perk. The Respondent’s uncontradicted testimony

was that an installer (Rob) and Justin (a truck driver) also had company vehicles.

[255] Ms. Reid described the Respondent as the only employee who was eligible for profit-

sharing. The Appeal Body accepts that the Respondent received three cheques for $10,000 in 2009

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and 2011, which cheques the Respondent described as bonuses. The Appeal Body prefers the

characterization of these payments as bonuses. There is no evidence of any formal or written

profit-sharing agreement and certainly no evidence that the Respondent benefitted from profit-

sharing outside of 2009 and 2011. If there was any profit sharing, it was clearly very limited in

scope. It is unclear why these bonuses were given to the Respondent. Mr. Oakes testified that he

too received similar bonus cheques twice.

[256] Ms. Reid testified that the Respondent was the highest paid non-owner employee at the

company. While that may be the case, the Respondent was still required to record his time worked

and submit timesheets in the same manner as other company employees, including the movers and

drivers.

[257] While the Appeal Body accepts that perks such as a company vehicle or bonuses are often

reserved for higher level employees and can be indicative of a supervisory role, this will not always

be the case. Such perks can also be used in recognition of long-service or in an effort to retain

valued employees, regardless of their position in the organizational hierarchy.

[258] As noted earlier, the Appeal Body does not accept that the Respondent had the ability to

commit the Appellant financially in any meaningful way. He had no cheque-signing authority and

while he could submit receipts for certain expenses such as vehicle maintenance or crew lunches,

there was no evidence that he could commit the company in any significant financial manner such

as by setting bid rates for jobs or making major equipment purchases.

[259] In terms of reporting structure, it is clear that the Respondent reported to the owners, as did

the other supervisors and managers. It was also stated by numerous witnesses that the movers

reported to the supervisors. The Appeal Body accepts that the movers reported to the supervisors

at the job site in terms of checking in when them when tasks were completed and obtained the next

task on the list. However, the evidence is equally clear that movers did not report to the supervisors

in the sense that supervisors had control over their career progression, performance reviews, setting

of wages, scheduling of shifts or even training and development.

[260] Both Ms. Reid and Mr. Reid testified that the Respondent would be involved in guiding,

mentoring or training new staff. There was no evidence of any formal staff training programs

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before the Appeal Body nor any specific evidence on what the Respondent did in terms of training.

However, the Appeal Body accepts that the Respondent, as he put it, would show new employees

the ropes. The Appeal Body accepts that the Respondent was in a good position to guide new

employees given his experience and long tenure with the Appellant.

[261] In terms of authority over the crew, the Appeal Body accepts that the Respondent could

and did send employees home if there were concerns at the work site. However, the Appeal Body

does not equate this with a power to discipline employees. It was clear from Mr. Celotto’s example

that all the Respondent could do was report incidents to the owners and then they would be the

ones to implement any formal discipline. However, as was pointed out by Appellant’s counsel,

why would Mr. Celotto have listened to the Respondent’s directive to go home but for the fact that

the Respondent had some degree of power or control over the crew. Similarly, Mr. Remezoff paid

heed to the Respondent when the Respondent sent him home from work.

[262] Similarly, the Appeal Body finds that there was some, albeit limited, power to extend the

workday for the crew if it was required by the job. The Respondent testified that he could extend

the workday by up to 30 minutes before he had to seek the approval of dispatch whereas Ms. Reid

testified that the Respondent could extend the workday by up to 3 hours. Whether it was 30

minutes or three hours, the Respondent did have some limited discretion over the hours of the

crew.

[263] Another element which the Appeal Body has considered is the somewhat imprecise nature

of the role of “supervisor” at the Appellant’s workplace. The evidence demonstrates that, prior to

2018, there was no specific “supervisor” position in the sense that the Respondent was not hired

in a specific supervisor position – he did not have a contract of employment or a letter of offer

describing him as such. Further, there was not a specific time when it was obvious that the

Respondent had crossed over from mover/driver into the role of supervisor. There was no obvious

pay increase associated with the Respondent taking on the supervisor role. There was no bright

line to mark someone’s transition into a supervisor role.

[264] The role also seems to be somewhat unique in that the Respondent is not always acting as

the “supervisor”. There were instances when the Respondent acted in the role of a driver or an

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installer and reported to other supervisors. In other words, the Respondent was not a supervisor

in the sense that he invariably only acted as a “supervisor” day in and day out. However, the

Appeal Body is prepared to accept that the Respondent acted in the supervisor position the vast

majority of the time. Mr. Remezoff estimated that the Respondent acted in the supervisor role

80% of the time and Mr. Casey and Mr. Janacek likewise assigned the Respondent to the role on

a regular basis. Further, the Appeal Body accepts that there was a core group of senior employees

who were regularly assigned the supervisor role, although Mr. Oakes also gave evidence that it

was important to give the “young guys” a chance to carry out and gain experience in the role.

[265] Multiple witnesses described the supervisor as the person whose name was “at the top of

the list” on the crew sheet. Mr. Janacek testified that what was required to be assigned to that slot

was someone experienced and trustworthy. Mr. Janacek had assigned individuals as supervisors

who weren’t supervisors per se (e.g. Mr. Wahed). There was also evidence that an employee

named Merhawi was assigned as the supervisor even though he was not formally a supervisor in

title. Similarly, Mr. Casey testified that he didn’t have regard to title per se, but assigned the most

senior person as supervisor. Likewise, Mr. Celotto stated that someone would act as the supervisor

if they had seniority and experience. Mr. Hardman gave similar evidence. Mr. Orr testified that

you became a supervisor by being placed at the top of the sheet. Anyone could be there. It was

usually a senior person but it could also be a driver. Sometimes less experienced and younger

employees would be given the change to run the job.

[266] The Appeal Body has considered all the of the cases presented by the parties and will

comment on those it finds the most relevant to the present case. The Appeal Body is satisfied that

Sunterra and Cross, where the employees were found to be managers or supervisors, can be

distinguished on their facts. In Sunterra, while the employee at issue had similar duties to the

Respondent, certain of the factors used to determine that he was a manager or supervisor included

that he was responsible for setting the hours of work of his employees, changing the hours of work,

ordering inventory, making recommendations on new products and merchandising, recruiting new

employees and attending and participating in monthly management meetings. Except for a limited

ability to extend the workday to complete a job and attendance prior to November 2015 at the

Wednesday morning meetings (at which the Appeal Body has already concluded the Respondent

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did not participate in the overall control or direction of the company), none of these factors are

present in the Respondent’s case.

[267] Similarly, in Cross, certain of the factors used to determine that the employee was a

manager or supervisor included that the employee was in charge of managing stock, purchasing

supplies, food and chemicals. He scheduled all the hours of work of the kitchen staff including

time off and vacation. He arranged and executed the banking of overtime arrangements for staff.

These factors are not present in the Respondent’s case.

[268] The Appellant urged the Appeal Body to give significant consideration to the Petersen

case. The Appeal Body agrees that Peterson provides important guidance as it is a case that

distinguishes the supervisory function from the managerial function in its findings.

[269] In Petersen, one person was designated on each crew as the “crew leader” who had the

responsibility to supervise the work done by the crew, determine when the work would start and

end each day, meet and deal with the municipality or the road contractor as required to coordinate

the work in the field, and assume responsibility for the work of the crew. It appears in some cases

the paint truck driver was also the crew leader and in other cases some other member of the crew

was appointed crew leader. The crew leader was responsible for the supervision of all of the

activities of the crew. The crew leader obtained the job orders from the company, determined what

supplies were required, obtained the necessary materials, contacted the customers and met them at

the site and kept records of all of the work done and all of the hours of work of all of the members

of the crew. This description of duties is virtually indistinguishable from the description of the

Respondent’s duties in this case.

[270] Here, the Respondent likewise obtained the job orders from dispatch, determined what

supplies and equipment were required, contacted the customers and completed the paperwork.

Similar to the situation in Peterson, there was evidence about the interchangeability of who could

be considered crew leader.

[271] The Employment Standards Umpire concluded in Petersen that the employee was

employed in a supervisor capacity as crew leader. However, he was not in a management capacity

at the material time. He was a resource person to management but did not have any management

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powers. A “resource person to management” would likely be a fitting description for the

Respondent in the present case as well.

[272] In Petersen, while the employee was found to be engaging in duties of a supervisory nature,

he did not fall within the scope of the overtime exemption as his primary duties consisted of paint

truck driving and not supervising.

[273] The fundamental issue for the Appeal Body is determining what falls within the ambit of a

“supervisory capacity”. In addressing this question, the Appeal Body is mindful of the need to

apply a narrow construction to any exemptions to minimum employment standards and of the

importance of ensuring that “supervisory capacity” is interpreted in its proper statutory context.

The Appeal Body notes here the commentary in Kashruth at paragraphs 11 and 12:

There is no suggestion that the Mashgiachim are managers in the sense that they

manage the employers’ (or the clients’) organization in any way. Accordingly, the

issue before me rests on whether the duties the Mashgiachim perform are supervisory

in character. The essence of the applicant’s argument is that virtually all the work the

Mashgiachim do is supervisory in character as can be plainly seen by the agreed

statement of facts. Indeed, even the word “Mashgiach” is the Hebrew word for

“supervisor”. In this regard Mashgiachim have the full authority to direct, guide,

oversee and report on the entire production line in an industrial establishment. This

includes the authority, among other responsibilities to interrupt and hold up production

and decline shipments. At a kosher establishment (or one that is certified kosher for a

function) the Mashgiach “has complete control of the [food preparation] process.” He

can direct staff to do anything to ensure the food is prepared in a proper kosher

manner.

12.

In my view, the applicant’s interpretation of the word “supervisory” takes that

word out of its proper statutory context. It is clear that the word “supervisory” does

not simply mean that the employee in question supervises people. If that were the case

then many classes of employees who are clearly entitled to the payment of overtime

pay might be exempt. For example, a day care worker, whose job is to supervise

children under his control, or a lunch room monitor at a school whose job is to

supervise school children, while they eat lunch, would be supervisory. Since these

classes of employees, among many others, are clearly not intended to be exempt, it is

appropriate, in my view to define the word “supervisor” with regards to the scheme

and purposes of the Act rather than consider a naked list of the tasks done by the

employee.

[274] The Appeal Body has also given significant consideration to the Respondent’s argument

that the Appellant is confusing a senior and experienced employee with a supervisor. There is

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some attraction to the argument that the Respondent is the most experienced employee on site and

to that extent, he is simply the “lead hand” rather than the supervisor. Employees go to him

because he knows what he is doing and because he has been with the Appellant for a long time.

The Appeal Body has likewise considered the evidence with respect to the interchangeability of

the supervisor role and the evidence that all that is required to be a “supervisor” is availability,

seniority and experience.

[275] However, on balance, and considering the plain meaning of the term supervisor used in

Sunterra (a surveyor or overseer…in a broad sense, one having authority over others, to

superintend and direct), the Appeal Body finds the Respondent was engaged in supervisory duties.

The Respondent was plainly the overseer of the jobs – he was responsible for obtaining the

paperwork and assigning the tasks to the crew. The crew would check in with him throughout the

day and look to him to assign new tasks as needed. In his own words, the Respondent would direct

the staff and he needed the respect of the crew. If problems arose, the Respondent would address

them. The Respondent was who the client would come to with questions or issues and the

Respondent would likewise report to the client on the progress of the job. The Respondent was

responsible for completing a walk-through with the client and ensuring the client’s satisfaction

with the job. The Respondent could send movers home for misconduct and could correct issues

on site such as failing to wear appropriate personal protective equipment. The Appeal Body is

satisfied that these duties were materially different than the duties performed by the movers or

drivers.

[276] The Appeal Body is further satisfied that these types of duties fall within the proper

statutory context and were intended to be caught by section 2(1) of the Regulation. The

Respondent was not just “supervising” or watching in the sense cautioned against in Kashruth. He

was responsible for ensuring the success of whole move operation. As such, the Respondent was

employed in a “supervisory capacity” as contemplated in section 2(1).

[277] It is important to reinforce here that the Appeal Body does not need to find the incidia of

management in order for the Respondent to fall within section 2(1). As noted earlier, the Appeal

Body is easily satisfied that the Respondent was not employed in a “managerial capacity”.

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However, for the reasons set out above, the Appeal Body finds that the Respondent was employed

in a supervisory capacity.

(iii) Did the Respondent perform his supervisory duties in an incidental way?

[278] This finding does not end the analysis, however. For the Respondent to be caught by the

exemption, it must also be established that the Respondent’s duties “do not, other than in an

incidental way, consist of work similar to that performed by other employees who are not so

employed.” In other words, if the Respondent’s primary duties consist of the same work performed

by those he supervises, the Respondent will not be caught by the exemption.

[279] While the general description of the Respondent’s duties was quite consistent, there was a

great deal of variation in the evidence with respect to the amount of time that the Respondent

would spend on “supervisor” duties. Speaking for himself, Mr. Janacek indicated that depending

on the job, he could spend none of his day moving or all of his day moving (or conversely, all of

his day supervising or none of his day supervising). Speaking of the Respondent, Mr. Janacek

surmised that the Respondent probably moved boxes on every job, although he was responsible

for moving at a “higher level”. Mr. Reid described the Respondent as spending 100% of his time

on supervision even though he agreed that the Respondent would be moving, driving and installing

at client sites. It is not clear to the Appeal Body how the Respondent would be able to spend 100%

of his time on “supervision” if he was also moving, driving and installing at the sites.

[280] Mr. Waked estimated that the Respondent would spend 85-90% of the day being a

“supervisor” and the rest of the day “chipping in”, although he also conceded that the Respondent

would work with the team and do whatever was needed. Mr. Remezoff testified that “supervisor”

duties do not take up a lot of time. Once the job gets started, supervisors work beside the crew

and are hands-on. He estimated that 60% of the day is spent on the supervision aspect and 40% is

spent on moving and installing. These percentage estimates seem somewhat inconsistent with Mr.

Remezoff’s initial statement that supervisor duties do not take up a lot of time.

[281] Mr. Casey estimated that only 1.5 hours of an 8-hour shift (or 19%) would be spent on

“supervision”. Mr. Celotto found it hard to make any estimate on the division of duties but testified

that supervisors are very hands on and both delegate and complete tasks themselves. The

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Respondent, during the hearing, estimated that he would spend about 10% of his time on the

“supervision” aspect and the rest of the time, he would be “in there working with the guys”. He

had previously completed an Employment Standards questionnaire indicating that he spent 0% of

his time on supervisory duties. He has since fairly conceded that 0% would not be accurate.

[282] As stated in Cross, the intent of the section appears to be that duties or functions of a non-

supervisory nature performed in an incidental way to the supervisory functions do not remove the

employee from the supervisory category. The nature of the work, and the proportion of time spent

in performing non-supervisory functions, are both factors in considering whether it was done in an

“incidental way”. In common usage, the word “incidental” connotes something which is

subordinate to something more important. It may be necessary or related but it is collateral or

concomitant and simply occurs along with another more important feature, occurrence or function.

[283] It is difficult to draw any reliable conclusion in terms of the percentage of time that the

Respondent spent on supervisory duties. The Appeal Body is not inclined to accept Mr. Reid’s

estimate of 100%. This is plainly inflated given his concession that the Respondent also moved,

drove the truck and installed. The Appeal Body is equally not prepared to put significant weight

on the 10% estimate given by the Respondent. While the Respondent would be in the best position

to provide this information, it is clear from the manner in which he originally completed his

Employment Standards questions that he wanted to have any quantification of time spent on

supervisory duties look as low as possible. The other estimates vary from 19% to 60% to 85% of

time spent on supervisory duties.

[284] Given the difficulty in quantifying the time spent by the Respondent on supervisory vs.

non-supervisory duties, the Appeal Body will focus instead on the second factor articulated in

Cross: the nature of the work. A significant number of witnesses testified as to the hands-on

nature of the work. The Appeal Body is satisfied on the whole that the most likely characterization

of what occurs at the job site was that provided by Mr. Remezoff: “once the job gets started, the

supervisor works beside the crew and is hands-on”. In other words, the majority of the supervisory

work would occur at the front end when the tasks are assigned to the crew. Supervisory tasks are

also engaged at the end of day when the supervisor does the walk-through with the client. While

Classification: Public

61

issues no doubt would pop up during the day that the supervisor needed to deal with, the Appeal

Body is nevertheless prepared to conclude that the Respondent spent the bulk of his day otherwise

doing moving, driving or installing tasks to ensure that the move was completed well and on time.

As noted by Mr. Celotto, supervisors would delegate tasks to themselves.

[285] One piece of evidence that has swayed the Appeal Body in this direction is the discussion

that occurred in November 2015 at what Ms. Reid described as the “supervisors only” meeting.

At that time, the Respondent raised a concern at that meeting about the supervisor role and

indicated that that if the Appellant wanted him to be a supervisor then he should be supervising

and not working with the crew. This concern was recorded in Ms. Reid’s notes. The raising of

this concern provides a basis to find that the Respondent was primarily working throughout the

day with the crew. The Appeal Body has attached weight to this comment particularly because it

was made in 2015, before the overtime issues arose and before either party had an interest in

portraying the percentage of time spent on supervision in any particular light.

[286] While the Appeal Body accepts the Appellant’s contention that this was a small company

and no one was above pitching in, this does not mean that everyone pitching in was pitching in to

the same degree. In the Respondent’s case, the Appeal Body is satisfied that the largest proportion

of the Respondent’s day was spent doing activities such as moving, driving or installing.

[287] In the result, the Appeal Body finds, like in Petersen, that the Respondent’s primary duties

were working alongside the crew doing driving, moving and installing. These primary duties were

not incidental to his supervisory duties and accordingly, the Respondent is not caught by the

overtime exemption set out in section 2(1) of the Regulation.

Conclusion

[288] The Respondent is not caught by the overtime exemption set out in section 2(1) of the

Regulation. Accordingly, overtime pay is owing to the Respondent.

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[289] The Appeal Body notes here that a component of the Order of Officer involved wages in

the amount of $229.32. The issue of the wages was not raised during the hearing by either party

and the Appellant’s Notice of Appeal appears to relate only to the overtime issue. As such, the

Appeal Body does not understand this portion of the Order of Officer to be at issue.

[290] Pursuant to section 107(1)(a) of the Code, the Order of Officer is confirmed as follows:

Wages ..................................................................................

$229.32

Overtime Pay .......................................................................

Vacation Pay ........................................................................

General Holiday Pay ............................................................

Pay in place of Notice of Termination of Employment …...

Other ....................................................................................

Owing to Employee: .......................................................................

Audit Fee ..............................................................................

Order of Officer Fee ……………………………………….

Owing to Minister of Finance ………………................................

TOTAL AMOUNT PAYABLE ………………………………….

$3,219.70

$0.00

$3,449.02

$0.00

$344.90

$3,793.92

ISSUED and DATED at the City of Edmonton in the province of Alberta this 11^thday of August,

2022 by the Labour Relations Board and signed by its Vice-Chair.

_____________________________

Ayla K. Akgungor

Vice-Chair

Classification: Public