Date: 2007
Author: Daniel A. Lublin
Publication: Metro

Statutory rights are implied terms of employment

Many employees are not paid for the minutes or hours they actually work.  Salaried employees, for example, are paid an annual rate of compensation.  If a salaried employee works more than the standard working week, he or she does not always expect to be paid extra for that time; it is viewed as part of the job.  Such dedication may be desirable to employers – but that does not necessarily make it legal.
Joseph Holland didn’t argue when he was paid straight time, not overtime pay, for 1,581 hours of overtime that he worked.  When, however, he was dismissed three years later, he sued his former employer alleging that he was entitled to over $17,000 in unpaid overtime pay.
Holland’s employer, Northwest Fuels Ltd., argued that Holland agreed that he would be paid straight time for overtime hours he worked because he was paid a higher hourly rate than other employees doing the same work as he did.  But employment standards legislation across Canada prohibits agreements that provide employees with less than the minimum standards set out in those statutes.  Therefore, even if the judge had accepted that Holland had agreed that he would be paid straight time, that agreement could not prevent Holland from claiming overtime.
Recently, a British Columbia judge agreed with Holland, ruling that statutory rights are implied into employment contracts.  The right to be paid overtime, for example, does not need to be negotiated and written into an employment contract to govern the relationship or the adjudication of any disputes.  It exists because the legislation says it does.
Despite the finding in this case and the recent high-profile class-action lawsuit against the CIBC, claiming overtime pay for all employees who have worked more than eight hours in a day, busy employees “forced” to work through lunch, for example, should not suddenly begin to line up outside my office door:

• Employees are governed by differing employment standards legislation across Canada.  The CIBC lawsuit, for example, is governed by the federal law requiring daily overtime pay for hours worked in excess of eight per day.  In Ontario, subject to some exceptions, employees must be paid overtime pay for hours worked in excess of 44 per week.

• There must be some evidence that the employee has worked overtime.  Daily calendars, timesheets, dockets, emails and any other form of dispositive proof, should be preserved.

• Provincially, employees have various dispute resolution mechanisms that provide alternatives to bringing a court action.  Given the various deadlines for commencing a claim and statutory exceptions to receiving overtime pay, employees should meet with a lawyer if they are considering a complaint.

• In certain cases, employers and employees can agree to various arrangements or be subject to company policies, such as banking overtime hours.  If that policy or arrangement provides the employee with less than the minimum provincial employment standards, it is invalid.