Samuel Jonas v. Summerfresh Salads Inc., 2000 CanLII 12491

Employment Practices Branch File No. 41007748

BEFORE: John Morgan Lewis, Vice-Chair.

APPEARANCES: Samuel Jonas for himself; Susan Niczowski, Donald G. Chillman, for the employer; L. Eisenberg for the Ministry of Labour.

DECISION OF THE BOARD; March 21, 2000

This is an application under section 67 of the Employment Standards Act, R.S.O. 1990, c.E-14, as amended (the “Act”). In her decision dated July 21, 1999, Employment Standards Officer Walker dealt with a number of issues in dispute between the parties. Those issues included: whether Samuel Jonas (the “applicant”) was in an employment relationship with Summerfresh Salads Inc. (the “employer”); whether the applicant was owed outstanding wages and vacation pay; whether the applicant was entitled to overtime pay and finally whether the applicant was entitled to termination pay.
At the hearing, the applicant advised the Board that the only issue remaining in dispute was his claim for overtime pay. Accordingly, this decision only deals with the applicant’s entitlement to overtime pay. Employment Standards Officer Walker had rejected the applicant’s claim for overtime pay on the basis that he was employed in a managerial capacity with the employer.
The Board heard viva voce evidence from the applicant. At the closing of his case, the Board declined to hear from either the Ministry of Labour or the employer. The Board ruled orally that the applicant fit within the managerial exclusion set out in section 6(b) of Regulation 325 and was therefore not entitled to overtime pay. The reasons for the Board’s oral ruling are as follows.
The employer is a company that prepares salads from fresh produce for the retail and wholesale trade. The employer employs approximately ninety-six individuals at its place of operations located in Woodbridge, Ontario. It is a family run business. Susan and Mary Niczowski are sisters. Susan Niczowski is the General Manager and Mary Niczowski is a Director. Their mother, Francis Niczowski, is a Production Supervisor. The applicant is the brother of Francis Niczowski and the uncle of Mary and Susan Niczowski.
The employer hired the applicant on April 13, 1998. He was assigned the position of Afternoon Shift Supervisor. He reported to John Andrulis, the Production Manager and to his sister Francis Niczowski. He was to supervise staff in the cooking, cutting and packaging departments. His duties also included supervising, coordinating and providing leadership to staff, ensure quality of all packaged items, assign specific tasks to workers and ensure production lines were staffed to maximum efficiency.
The applicant testified that during peak periods of production between the months of May and August, the employer hired temporary staff and that part of his duties was to customize them to the work they would have to perform. The applicant further testified that he was not responsible for hiring the staff nor was he responsible for determining staffing levels. The applicant would arrive at work and would only then discover the staffing levels for that day’s afternoon shift.
There were as many as eighty-five employees on the afternoon shift. There was no clear start or end time to the afternoon shift. The applicant testified that he would arrive at work usually between 12:00 p.m. and 1:00 p.m. and would not leave until 11:00 p.m. and sometimes even later. The morning shift usually commenced at 7:00 a.m. Employees in the afternoon shift would have varying start times. During the afternoon shift, there would be a period of time in which the applicant, John Andrulis and Francis Niczowski would all be present at work. During those periods, the applicant would receive instructions from either John Andrulis or Francis Niczowski. When they left, however, the applicant testified that he was solely in charge.
The applicant testified that he was not employed in a managerial capacity but was rather a lead hand. The employer has four distinct production lines: the Kitchen in which ingredients for dips were prepared; the Cutting Room in which raw vegetables were sorted and cut; the Dip Line in which various salad dips were packaged; and the Salad Line in which spices and vegetables were mixed and packaged. Each production line had a lead hand who would oversee production and would also work alongside the employees. The applicant asserted that he was a lead hand as he also worked alongside employees. During cross-examination, however, it became apparent that there was a clear distinction between the position of Afternoon Shift Supervisor and that of a lead hand.
The lead hands in the afternoon shift would report to the applicant when John Andrulis and Francis Niczowski were not present. While the applicant testified that he would occasionally work alongside production employees, such instances were short in duration and occurred only when he needed to assist in maintaining adequate production levels. This is a far cry from a lead hand who works continuously on the production line.
A further distinction between the applicant and the lead hands is found in their respective attendance at monthly production meetings. The applicant testified that he was required at all monthly meetings which were attended by office staff and production managers. The applicant testified that lead hands would sometimes attend but only if an issue pertaining to their specific work area was being discussed.
It is clear that the applicant became dissatisfied with his working conditions and, in particular, the fact that he was working excessive hours. When he was hired, the applicant agreed to an annual salary of $35,000 and knew that his position would require being at work for long periods of time. According to the applicant, he understood that during the peak periods from May to August he would be required to work long hours. He agreed to do so because he thought his work schedule would be greatly reduced during the rest of the year. It would appear that such would have been the case had not the employer’s business continue to operate at peak levels throughout the fall of 1998. In order to meet production levels, the applicant continued to work long hours with the employer.
According to the applicant, he began to complain about his workload and wanted to be compensated for his working such long hours. The applicant was cross-examined at length regarding whether he had been requesting payment for overtime or that his complaints concerned other aspects relating to his compensation and employment with the employer. Frankly, whether the applicant had been requesting overtime pay or not during the fall of 1998 is not particularly relevant to the determination of whether he is entitled to overtime pay.
Section 24 of the Act reads as follows:
(1) Except as otherwise provided in the regulations, where an employee shall be paid for each hour worked in excess of forty-four hours overtime pay at an amount not less than one and one-half times the regular rate of the employee.
The entitlement to overtime pay, and in particular section 24 of the Act, does not apply to a person employed whose only work is supervisory or managerial in nature. Reference is made to section 6 of Regulation 325 which is set out as follows:
Part VI of the Act does not apply to a person employed,

(b) whose only work is supervisory or managerial in character;

There have been many cases dealing with the interpretation of the managerial exclusion and the specific wording of section 6(b). Much has been written regarding the use of the terms “only” and “in character” which are used to qualify the nature of the work in question. A clear reading of the proper interpretation of this section is found in the Ontario Divisional Court decision in Kennedy v. William C. Cavell Enterprises Ltd., 18 C.C.E.L. 52 (Ont. Div. Ct.) at page 55:

The applicant says that the referee read the word “only” out of the regulation because the editor did work other than purely managerial work. I would be inclined to agree if the regulation referred to work that was only supervisory or managerial instead of work that is only supervisory or managerial in character. The word “character” balances the word “only” so that one must look not just at the individual acts that comprise the work, but rather at the overall character of the work.

The character of a job does not just mean the individual acts that make up the particular job. “Character” means feature, trait, essential peculiarity, nature, sort. One single non-managerial act does not necessarily destroy the essential nature of a job as being only managerial in character. If the managing editor of the New York Times writes a single editorial or reports a single story, that does not necessarily destroy the essential character of his job as being only managerial. It is a question of degree.

So long as it is a question of degree, it is a question of fact in each case whether or not the performance of a traditionally non-managerial act destroys the character of a job as being only managerial.

It may be that every editorial job is only managerial in character. It may not be that every editor is solely a “Monarch of Thought” to use the words of Ambrose Bierce. But we are not dealing here as a matter of law with every editorial job there is. We are dealing here only with what the referee found to be the essential nature of the particular job of the editor of the Cochrane Northern Post between March 2nd, 1983 and April 4th, 1985.

The referee did not ignore the words of the regulation in general and he did not ignore in particular the word “only”. He gave them an interpretation that seemed appropriate to him in light of the evidence he heard and in light of his understanding of the administration of the employment standards regulations.

It may be that his expression of the doctrine of self-management has very limited application, if any, to other cases. But it seems to me on the facts of the case he heard that his interpretation is one that the words of the regulation might reasonably bear.

DISPOSITION

Having considered all of the evidence, the Board hereby finds that the applicant’s position of Afternoon Shift Supervisor was managerial in character, as defined under section 6(b) of Regulation 325, and as such, he was not entitled to overtime pay. The applicant’s duties were clearly distinct from those of a lead hand and were managerial in nature. The limited periods in which he worked alongside production employees did not alter the character of his position as being managerial. Accordingly, this application is hereby dismissed.

“John Morgan Lewis”

for the Board