Canadian Employment Law Today

No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. We acknowledge the financial support of the Government of Canada, through the Publications Assistance Program (PAP), toward our mailing costs. GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: Carswell.customerrelations @thomsonreuters.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Carswell Media: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com ©2017 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 YOU MAKE THE CALL Was Newrick not entitled to overtime pay in his role as executive chef? OR Was he entitled to overtime pay? IF YOU SAID Newrick was entitled to overtime pay, you're right. An employment standards offi cer ruled Newrick wasn't enti- tled to overtime pay because Ontario Regu- lation 285/01 under the Employment Stan- dards Act states managerial employees who were exempt from overtime pay could "per- form non-supervisory or non-managerial tasks on an irregular or exceptional basis" and remain exempt. However, the Ontario Labour Relations Board disagreed, fi nding the kitchen work Newrick performed was beyond "irregular or exceptional" — due to the staff shortages, Newrick was preparing, cooking, and cleaning every day. e board found Newrick's Feb. 11 text to Vanderveen supported his claim that he was working longer hours than normal. It didn't really matter whether it was because Ne- wrick was inexperienced or the restaurant was short-staff ed — the fact was Newrick was working late hours and much of it was non-managerial work, said the board. e board found Newrick's overtime work — and much of his work during open- ing hours — was non-supervisory and non- managerial. Based on Newrick's weekly wage calculation and his claim he worked 228 overtime hours — Vanderveen didn't keep track of the hours Newrick worked — the restaurant was ordered to pay $5,182.44 in overtime pay to Newrick. For more information see: • Newrick v. 2439436 Ontario Ltd., 2015 CarswellOnt 18260 (Ont. Lab. Rel. Bd.). Executive chef can't stand the heat but can't get out of the kitchen THIS INSTALMENT of You Make the Call features an executive chef who claimed un- paid overtime for the long hours he worked at a startup restaurant. In January 2015, a new restaurant call Fur- lough opened in Toronto. Furlough's owner, Brent Vanderveen, posted for an executive chef in November 2014 and Justin Newrick accepted an off er for the position with a 40- hour work week, though he never signed the contract Vanderveen gave him. Newrick was involved in buying equip- ment for the restaurant's kitchen and sug- gesting menu items in the time leading up to the opening, but he wasn't paid for it. His po- sition offi cially started with the restaurant's opening, at which point he was responsible for making employment and termination decisions and evaluating and disciplining staff . His job description also stated that he was to ensure all food was consistently prepared and served according to the res- taurant's recipes and standards. He was also responsible for training the kitchen staff , planning the menu, and running the kitchen. Newrick interviewed candidates for sous-chef, line chef and dishwasher, but couldn't hire them without Vanderveen's ap- proval. Equipment purchases also required Vanderveen's approval. When Furlough opened, it was immedi- ately busy. According to Newrick, he ended up cooking most of the time and perform- ing preparation work before the restaurant opened each day. He also had to clean the sinks and fl oor in the kitchen and take out the garbage after the restaurant closed, as Vanderveen wouldn't hire enough staff to allow him to focus on the role of executive chef. He claimed he worked between 80 and 100 hours per week. is was Newrick's fi rst experience as an executive chef, but felt he wasn't able to prop- erly fulfi ll his role because the lack of staff re- quired him to assist regularly in food prepa- ration, cooking and cleaning. Occasionally, Vanderveen sent the dishwasher home early if it wasn't busy, leaving Newrick to fi nish the cleaning after the restaurant closed — which sometimes took until 1 a.m. or later. In ad- dition, Newrick claimed the sous-chef could leave when he wanted, leaving Newrick the last kitchen staff member left. On Feb. 11, 2015, Newrick texted Vanderveen to say he was feeling over- worked and too much was being demanded of him, so he needed a day off . Vanderveen granted the day off , but the next day termi- nated Newrick's employment. Vanderveen claimed Newrick wasn't working out as executive chef. He believed Newrick was trying his best, but he couldn't perform the responsibilities of the position such as preparing recipe cards for each meal, ordering ingredients, and scheduling staff hours so he was able to perform his duties. Vanderveen felt Newrick reverted to the du- ties of sous-chef when he was unable to meet the demands of the executive chef position Newrick fi led a claim for unpaid over- time, arguing the bulk of his work consisted of non-managerial duties, so he was owed overtime for the hours he worked in excess of 44 per week even though his position was managerial in nature.

• Cover