The Quebec Court of Appeal has clariﬁed that, absent contractual provisions to the contrary, all who “in fact” exercise supervisory/managerial authority to any appreciable extent, irrespecti ve of how they are paid, cannot claim overti me or premium pay under the Labour Standards Act.
In Skiba v. Playground l.p. 2014 QCCA 1094, Appellant’s ti tle changed in 2006 from Director Finance and Operations – Business Unit to Financial Analyst, but he continued (i) to be paid on an annual basis; (ii) to beneﬁt from what were basically managerial perks; and (iii) to see his duties largely continued unchanged. He worked overtime regularly as the Court put it, either of his own volition or as a result of the nature of his work, although on a few occasions he was speciﬁcally requested to do so. When in June 2009, he was terminated for economic reasons, he insti tuted a claim in the Superior Court, for over $200,000, composed of approximately $184,000 for unpaid overtime hours, “if he was not considered, to use the words of paragraph 83 of his amended recourse, a cadre supérieur’ [senior executive]”, and the balance as an indemnity related to his termination.
The Court found that his claim hinged exclusively on the relevant provisions of sections 52 to 59.0.1 of the Quebec La- bour Standards Act [the “Act”]. The Su- perior Court had dismissed his claim for overtime on the basis of his being paid on an annual basis. In fact, earlier versions of the Act excluded folks who were paid weekly from overtime coverage. The Court of Appeal held that: “The real issue here is whether Mr. Skiba was as a question of fact performing managerial functions, rather than whether the overtime provisions of the Act extend to employees paid on an annual rather than hourly basis” [our emphasis]. The Court noted that the term “managerial personnel” can encompass supervisory employees of diﬀerent levels. While Skiba could not be considered to be part the company’s “senior managerial personnel”, that did not exclude him from being characterised as either a cadre de premier niveau/ ﬁrst-line supervisor, or cadre intermédiaire/ second line supervisor.
While Skiba argued that the change in title from Director to Analyst constituted a demotion, the Court found that the change was in title only and more in the nature of a “continuum of his existing duties”.
Interestingly, the Court noted that the fact that Skiba had worked innumerable hours of overti me, of his own volition, and, in what it termed the “dedicated manner in which he performed his duties”, was “entirely consistent with what would be expected of managerial personnel, as [was] his contractual eligibility for a performance bonus and other workplace beneﬁts”.
Take away for employers with respect to overtime
- Merely paying someone by the week, and designating such person a supervisor, foreman or even manager, is not conclusive.
- On the other hand, as long as the individual can be factually considered as part of the company’s “managerial personnel”, his exclusion from overtime provisions of the Act will operate, however he is designated.