Labour Board Clarifies Who Qualifies as Supervisory for OT Exemption

By: Joel Fairbrother

Published: 12 September 2022

C.S.S. Office Furniture Systems Service Inc. v Burns, 2022 CanLII 72131 (AB ESA) (Akgungor) is a new Alberta Employment Standards Code appeal case wherein the Alberta Labour Relations Board clarifies which employees are considered to act in a “supervisory capacity” as that term is used in the ESC Regulations, and which of those supervisory employees are or are not entitled to overtime.

This case is important because entitlement to overtime has a major financial impact on employees, and there have not been many cases in Alberta with detailed analysis of this issue.


Both sides in this case had some evidence supporting their position and version of the facts, but the following are the pertinent facts found by the Alberta Labour Relations Board:

  • The employee had succeeded in a claim for unpaid overtime in front of an employment standards officer. The employer appealed, arguing that the employee was employed in a supervisory capacity, and was therefore not entitled to overtime
  • The employee was senior on his crew. He would review paperwork from the office, drive the truck, and assign tasks to other employees.  When employees had problems with tasks they were working on, they would go to the employee and he would help them figure it out.  He would complete walk-through’s with the client when a job was complete.  Clients considered the employee to be the onsite supervisor for the crew
  • The employee had no authority to hire, fire, promote or demote other employees
  • The employee had a company vehicle. However, several non-supervisory employees also had company vehicles
  • The employee was the highest paid non-owner of the company
  • The employee had to submit timesheets for his time worked
  • The employee was allowed expense reimbursement for some expenses such as crew lunches, but did not have signing authority on behalf of the employer
  • The employee was allowed to send workers home when there was a problem at a worksite, but had no authority to discipline them
  • The employee spent a lot of his typical day doing things like moving, driving and installing

Analysis / Conclusion

Vice Chair Ayla Akgungor weighed the facts described above and found that the employee was clearly engaged in a “supervisory capacity” as contemplated by section 2 (1) of the ESC Regulations – the overtime exemption section- because he was not simply supervising or watching, but was “responsible for ensuring the success of whole moving operation”.

After finding that the employee was engaged in a supervisory capacity, the ALRB continued the analysis as follows:

[278] This finding does not end the analysis, however.  For the Respondent to be caught by the exemption, it must also be established that the Respondent’s duties “do not, other than in an incidental way, consist of work similar to that performed by other employees who are not so employed.”  In other words, if the Respondent’s primary duties consist of the same work performed by those he supervises, the Respondent will not be caught by the exemption. [underline added]


[282] As stated in Cross, the intent of the section appears to be that duties or functions of a non-supervisory nature performed in an incidental way to the supervisory functions do not remove the employee from the supervisory category.  The nature of the work, and the proportion of time spent in performing non-supervisory functions, are both factors in considering whether it was done in an “incidental way”.  In common usage, the word “incidental” connotes something which is subordinate to something more important.  It may be necessary or related but it is collateral or concomitant and simply occurs along with another more important feature, occurrence or function. 

The ALRB noted that it was too difficult in this case to quantify the relative amount of time the employee spent on supervisory vs non-supervisory duties, so instead the ALRB focused on the nature of the work being done by the employee, concluding as follows:

[287] In the result, the Appeal Body finds, like in Petersen, that the Respondent’s primary duties were working alongside the crew doing driving, moving and installing.  These primary duties were not incidental to his supervisory duties and accordingly, the Respondent is not caught by the overtime exemption set out in section 2(1) of the Regulation. 

The ALRB ordered the employer to pay overtime to the employee.

My Take

Keep in mind when reviewing this case that an employee can be entitled to overtime even if they are a “supervisor” or “manager” caught by the exemption, if their express or implied employment terms include a right to overtime.  Sometimes proof of that entitlement is in the employment contract itself, sometimes it is in the historical practice of an employer to pay overtime to all employees.

This case is about minimum employment standards.  The default assumption is that all employees are entitled to overtime unless they fit within one of the exceptions, such as “supervisory capacity” in this case. 

This case was really interesting to me.  The facts left little doubt that he was a supervisor of sorts, but whether or not his non-supervisory functions were done in an “incidental way” to his supervisory functions was a more difficult question which required some analysis. 

My impression was that both sides had strong arguments in this case, and I am not surprised it had to go to a hearing to get resolution.

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