3027-00-ES Visex Express Inc., Applicant v. Robert Flood, and Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 40011928

BEFORE: David A. McKee, Vice-Chair.

APPEARANCES: Ray Bakker for the applicant; Robert Flood appearing on his own behalf; Judie Im for the Ministry of Labour.

DECISION OF THE BOARD; August 28, 2001

1. This is an application for a review of a decision of an employment standards officer pursuant to section 68 of the Employment Standards Act, R.S.O. 1990 ch. E-14 ("the Act"). The employer has asked the Board to review a decision resulting in an Order to Pay issued by the officer. The Order to Pay was issued in respect of money found to be owing for work performed in excess of 44 hours per week, as required by section 24 of the Act.

2. The first issue raised by Visex Express Inc. ("Visex") was whether or not the hours had been worked at all, or whether they were worked without the authorization or approval of Visex. This is easily decided. Mr. Flood punched a timecard each day, some examples of which were filed at the hearing. These cards were obviously received and reviewed by someone at Visex. No evidence was offered that Mr. Flood was ever told to reduce his hours at work. Indeed, for reasons set out more fully below, I conclude that in fact Mr. Flood worked at a rate which was less efficient than Visex expected, and that was part of the dispute that led him to resign. That is, Visex was quite aware of the hours he was working.

3. Accordingly, the only issue is the main one raised in this application: whether or not the work performed by Mr. Flood is exempt from the application of section 24 of the Act by section 6 (b) of regulation 325. This section provides:

4. Part VI of the Act does not apply to a person employed,

(b.) whose only work is a supervisory or managerial and character.

4. I heard evidence from Ray Bakker, General Manager of Visex and from Robert Flood, the employee. Their evidence portrayed two very different jobs. This differing perspective arises, I find, from the somewhat removed position of Mr. Bakker from the actual workplace in which Mr. Flood worked.

5. Visex operates a shipping dock. Trucks operated either by customers or by the Visex bring goods to the dock. These trucks are unloaded, and merchandise is "picked" or arranged into individual loads comprising goods from many manufacturers which are then loaded onto other trucks. These other trucks are mainly owned by and operated by common carriers other than Visex. Those trucks deliver the assembled loads of merchandise from the dock to their ultimate destination, which may be a retail customer or another distribution dock.

6. Mr. Flood had previously been employed as a driver for Visex. He suffered injuries which limited to the movement of one arm. This injury prevented him from a returning to work as a truck driver, and was a source of concern, at least to Visex, about his ability to lift heavy objects. In May of 1996, Visex saw an opportunity to employ Mr. Flood in a different capacity. Todd MacAuley had been Night Manager at the Visex dock location. Visex wanted to have him work on another project, referred to in the hearing as the "Axion" project. Mr. Flood was hired to fill the gap.

7. Before Mr. Flood was hired the employee compliment on the dock was as follows. Mr. MacAuley was the Night Manager. There were two co-ordinators (Kevin and John, sometimes referred to by Mr. Bakker as assistant co-ordinators) who coordinated the unloading, selecting, and reloading of trucks, and anywhere from 5 to 30 employees engaged in the physical labour of doing so. There was also one co-ordinator who co-ordinated the work of up to 10 data entry clerks. There were no other employees of Visex at work on the dock at night. Mr. MacAuley reported to Mr. Bakker who was not regularly present at the dock during the evening.

8. Mr. Bakker testified as to his perception of the job Mr. Flood was hired to do. It is logical and consistent and did not appear to be overstated or exaggerated. However, since he was not directly involved in Mr. Flood's work, or supervising it directly, he was not into position to describe the job as it was actually performed. Mr. Flood's story was different, and he, of course, was the person performing the job. His immediate supervisor, Mr. MacAuley, did not testify.

9. Mr. Bakker stated that Visex wished to employ Mr. Flood to return to the workplace after his injury. He perceived Mr. Flood to have medical restrictions that ruled out driving or lifting heavy objects. He saw Mr. Flood as a person with initiative, energy, and an ability to pick up new aspects of work quickly. He stated that he hired him as a replacement for Mr. MacAuley. When he hired him he told Mr. Flood to do nothing but supervise the work of others; he was not to drive anything nor to lift heavy objects. He was paid $13.00 per hour, in contrast to $6.85 to $8.00 for dock workers and $9.00 to $10.00 for the two co-ordinators. Mr. MacAuley's salary at the time of his departure from the job of Night Manager was not given. Mr. Bakker stated that Mr. Flood was to ensure that all of the product was received, sorted out for reload, properly accounted for and labelled, and loaded onto trucks for delivery elsewhere. Mr. Flood was to ensure that the necessary paperwork and data entry work was done. His hours were not fixed and he was expected to leave when it was clear that the work for the evening was accomplished, or at least under control. The two dock co-ordinators were to close the building after the last load left; this was not a responsibility of Mr. Flood.

10. Mr. Flood's evidence differed somewhat from Mr. Bakker's in what he was hired to do, and differed to a much greater extent about what the job in fact involved. Mr. Flood did indeed anticipate filling Mr. MacAuley's job as Night Manager. His understanding was that he was hired initially as a co-ordinator, expected to receive training for six months, and then be promoted to the Night Manager. His evidence was that he never received a promotion, and his rate of pay remained at $13.00 per hour throughout the course of his employment.

11. During this period of employment he stated that he did direct the work of others and ensured that the product flowed properly through the dock. However, he stated that he also assisted in the performance of all of the work, as did the other coordinators. He testified that he participated in the unloading of trucks, sorting of goods, operating a forklift, and even, though rarely, performing some of the data entry functions. He testified that he performed this work in response to Mr. MacAuley's general instructions that he was to do "whatever it took" to get the product off the dock before the end of each night. For six months Mr. MacAuley was available at the dock for all or some part of each night. After that he was exclusively at the Axion project, and available by cell phone.

12. Mr. Flood agreed that he had hired some new employees. His evidence was that he had no discretion over the wage rate (always minimum wage) and that Mr. MacAuley had to approve all hiring. He did persuade Mr. MacAuley to higher one employee at 7.00 dollars per hour. Both witnesses agreed that there was a large turnover of employees in the job, which was a second and part-time job for many employees. Mr. Flood said that he basically hired “anyone who walked in the door" but nonetheless could not do so without Mr. MacAuley's approval. He testified that Mr. MacAuley did refuse to hire certain individuals (primarily persons whom he knew as former employees of Visex). Mr. Flood testified that he did not discharge employees on his own authority, but only after receiving Mr. MacAuley's approval. He also testified that he required Mr. MacAuley's approval to change work assignments, if such reassignment involved in change in pay.

13. There were neither job descriptions nor a job manual.

14. The manner of Mr. Flood's leaving is instructive. He resigned. However he did so after it was clear that Visex was not happy with his work and with the number of hours that had been worked by all employees on the dock. This suggests a lack of efficient operation of the dock. Mr. Flood acknowledged the validity of some of the criticism, but blamed it on a lack of the training that he believed he had been promised at the beginning of the job.

15. I did not hear any evidence from Mr. MacAuley. Thus I am left with the evidence of Mr. Bakker about what should have happened and the evidence of Mr. Flood about what did happen. I see no reason to disbelieve Mr. Flood's evidence. Although he was a trifle defensive about the circumstances of his departure, he appeared to give his evidence in a straightforward manner and to resist the temptation to embellish or distort his evidence. For example, in cross-examination he was asked if he ever fired anyone. He replied that he had. He explained that the two individuals he fired were employees he had hired. This was consistent with Mr. Bakker's evidence that he needed approval to discharge only employees who had been hired before he started his new job. It was only in response to a subsequent question on a related issue that he stated he had called Mr. MacAuley for his approval for the firing, (and indeed the initial hiring) and that the final decision was not his to make. Further, the fact that Mr. Flood did not prove satisfactory to Visex in the long-term, suggests that what Mr. Bakker envisioned should have happened, did not.

16. Finally, I had no evidence from Mr. MacAuley. Both parties were unrepresented and I am reluctant to draw an adverse inference about the failure of Visex to call a witness. However, the fact remains that the only evidence I have heard about what Mr. Flood actually did on the job is the evidence of Mr. Flood. If Mr. MacAuley has a different view, I did not hear it.

17. The meaning of section 6 (b) has been the subject of analysis by both Divisional Court and a number of adjudicators. In Kennedy vs. William C. Cavell Enterprises Ltd. (1987) 18 C.C.E.L. 52 the Divisional Court said:

The applicant says that the referee read the word “only” out of the regulation because the editor here 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 being only managerial.

It may not 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.

In Projeck Design and Development Inc. [1997] OESDA No. 129 (Cummings), the adjudicator said:

16. Having concluded that Mr. Cadieux performed manual labour as a regular part of his duties, it cannot be said that his “… only work is supervisory or managerial in nature”. This case is similar to Bre-Ex Limited, (February 27, 1980, ESC 736, Gorsky). A senior dispatcher was found to have performed a number of duties that were managerial or supervisory, involving directing employees, hiring and firing; entering into contracts and attending managerial meetings. However, the dispatcher also had a number of tasks of a clerical nature that he was required to perform on a regular basis. The Referee wrote the following:

It would appear that the exemptions from Parts IV and VI are for the purposes of differentiating working and nonworking supervisors and managers. The position of Mr. Lasaline [the senior dispatcher] is more akin to that of a working foreman, who in addition to supervisory or managerial functions performs, as part of his regular duties, non-managerial or non-supervisory functions.

… As above noted, if it was intended to exclude an employee from the operations of Parts IV and VI of the Act who performed a substantial amount of managerial or supervisory work, the regulations would not have used the word “only” before the words “work is supervisory or managerial in nature”.

17. As this decision indicates, the exemption from the obligation to pay overtime pay is a narrow one. In this case, while a substantial amount of Mr. Cadieux’s work was managerial, his work was not “only” managerial in character. A significant amount of labouring work was also performed. Consequently, the Employer is not exempted from paying overtime pay to Mr. Cadieux.

On the facts as I have them, it is clear that Mr. Flood's position was not one "whose only work is supervisory or managerial in character". Perhaps it should have been. That failure may have been a result of a lack of training (as Mr. Flood would have it) or lack of achievement (as Mr. Bakker would have it). The reason is not a relevant to this decision. I find that Mr. Flood did a significant amount of physical work associated with physically moving freight and performing the data entry and paperwork functions. While he did direct the flow of work, he had little or no supervisory authority with respect to hiring, firing, assignment of work, or wages. He had very little of the "element of judgment or discretion and the element of responsibility" that has also been applied as the essential feature of the kind of job described in the exception (see Alladin Motor Sales Limited (Oct. 19, 1989,Bendel) ESC 2580).

DISPOSITION

18. Accordingly, I find that Mr. Flood was entitled to the overtime rates pursuant to section 24 of the Act. There is no dispute about the accuracy of the Employment Standards Officer's calculations. I therefore direct the Director of Employment Standards to pay to Robert Flood the moneys held in trust for him, and to pay the balance to the Consolidated Revenue Fund.

“David A. McKee ”

for the Board