Written by Daniel Standing LL.B., Content Editor, First Reference
When someone is hired for a particular job, but their duties don’t totally align with what the job was to entail, disputes can arise. One way trouble can manifest itself is on the pay stub, like in 2023 BCEST 51. There, a worker was hired as a construction project manager but ended up working mainly as a labourer, including long hours of overtime. Under British Columbia Employment Standards Act, he was entitled to overtime pay only if he met the definition of employee; those characterized as managers were excluded, making an examination of the worker’s reality the only way to get to the bottom of the matter.
The case came before the British Columbia Employment Standards Tribunal as an application by the employer for reconsideration of a prior decision that ordered it to pay a former worker more than $10,000 in overtime pay. It was upset because, under the law, managers were disentitled to overtime and other benefits.
The decisions below, which were confirmed by the Tribunal, indicated that the managerial label was just that: a label. What mattered more was the reality of the job. In this case, it was determined that the worker had certain managerial duties, like supervising and acting as a foreman on certain projects, estimating jobs and making limited purchases. In the original determination, and on appeal, however, those tasks were deemed insufficient to outweigh the significant amount of time he spent cutting concrete, a labourer’s task.
The Tribunal’s decision
On reconsideration, the Tribunal upheld the decisions below in the employee’s favour. Legally, reconsiderations only proceed if they present a chance for the Tribunal to fix an egregious error of fact, law or procedure made by a member on an appeal decision. In other words, a reconsideration isn’t a third kick at the can; it’s not a chance to present the same evidence again and hope for a better result.
The Tribunal confirmed that there was a proper evidentiary foundation for the decisions that were reached, including the best evidence of the employee’s hours worked-his own hand-written notebook. There was simply no basis for finding the appeal decision was marked by perverse and inexplicable error, as the employer alleged.
Key takeaways for employers
First, a label only gets you so far. Calling someone an employee, a contractor or a manager can be a helpful way of differentiating them from others in the workplace, but it only makes sense if the person’s primary duties align with the label. Especially when significant money is at stake, courts are well-equipped to dive into the weeds and determine a worker’s precise status.
Secondly, it’s worthwhile remembering that not every case lends itself well to reconsideration. In the employment standards world (at least in BC), this step arises after two decision-makers have already weighed in on the matter. The decision to further litigate should be based on more than a feeling of discontentment; it will take a serious mistake on a fundamental point to make any headway on a reconsideration. Sometimes, employers would do well to accept their fate and realize that a reconsideration stands no chance of success.