In Hillbilly Haulin’ Ltd. v Osbak, 2026 ABESAB 1 (Scott), the Alberta Employment Standards Appeal Body determined that an employee was entitled to a certain wage rate and ordinary overtime pay. The employer had argued he was a “truck driver” under the Employment Standards Code Regulations and subject to a different (lower) overtime calculation.
This case is important because it provides some direction on how the ESC determines whether an employee falls into one of the special overtime categories or not.
Facts
The following were the pertinent facts summarized by the Alberta Labour Relations Board acting as Employment Standards Appeal Body:
- The employee Jason Osbak was employed with Hillbilly Haulin for about 3 months when his employment was terminated, purportedly for just cause
- Osbak was earning $30/ hour initially. However, at the start of his 3rd month of employment, Hillbilly Haulin’ advised him and other employees that they would be paid $30/hr for truck driving work and only $20/ hour for shop work
- Osbak was then paid $20 for the rest of that 3rd month
- Osbak brought an ESC complaint for being underpaid wages, unpaid overtime, and unpaid termination pay. This claim was successful in front of an ESC officer
- Hillbilly Haulin appealed to the Employment Standards Appeal Body (“ABESAB”)
- Osbak claimed to have worked 113 hours of overtime that was unpaid. Hillbilly Haulin claimed he worked less than that, took too long on tasks, and was not entitled to ordinary overtime anyway – they argued he fell under the special truck driver overtime rules
- Hillbilly Haulin’ also argued that it had just cause to dismiss his employment and that he was not entitled to any termination pay
Analysis / Conclusion
Vice-Chair Scott determined that Mr. Osbak was entitled to $30/hr for the third month of work, citing Section 13 of the ESC which is clear that an employer must give notice of a reduction in wages prior to the start of the relevant pay period, and since they failed to do so Mr. Osbak was entitled to pre-reduction wages for that period.
Regarding evidence of hours worked (for overtime calculation), Vice Chair Scott accepted Mr. Osbak’s evidence, which consisted of timesheets initialed by a supervisor.
The ABESAB rejected Hillbilly Haulin’s argument that Mr. Osbak was a “truck driver” with special overtime rules under Section 41 of the ESC Regulations for hours exceeding 10 per day and 50 per week.
The Section 41 special rules apply where someone is employed as a truck driver of a truck rated over 910 kgs, but not where their duties are “performed entirely within the same city”.
The employer had no evidence of the truck driver going between cities or working in more than one city, so he was not a truck driver under the ESC Regulations.
The ABESAB found the correct overtime formula was the default of 8 hours per day / 44 per week as set out in Section 21 of the ESC, which resulted in significant overtime for Mr. Osbak.
Hillbilly Haulin’s just cause argument was unsuccessful as well. The employer had some discipline records indicating some misconduct warnings, but those were not signed as received by the employee, and the employer’s witnesses did not have first hand knowledge of what was alleged in those records. The employee said he had not received those written warnings.
The ABESAB found the employer had not reliably established the alleged misconduct and had not established just cause on a balance of probabilities. As a result, the employee was entitled to termination pay under the ESC.
My Take
This case reminds me of so many cases I have personally seen over the years in my own practice.
This employer may have had good reasons for reducing wages and for terminating the employment of this employee. Its not really clear. What is clear though is that the employer did not carry these things out properly.
Finally, I wanted to note that while this serves as an example of the strict application of employment standards rules, business practices like these can lead to much worse consequences for employers.
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