Lazy F-D Ranches and Hay Sales Ltd. (Re), 2020 BCEST 110
The employer, Lazy F-D Ranches and Hay Sales Ltd., filed an appeal of a determination issued by the Director of Employment Standards. The employer was ordered to pay overtime and statutory holiday pay to a worker. At the crux of the employer’s appeal was whether the delegate erred in the interpretation of “farm worker” for the purposes of an exemption in the Employment Standards Regulation.
Mr. Kozisek was employed as an Agricultural Equipment Technologist under a Labour Market Impact Assessment (“LMIA”) permit. The employer and employee had entered into a written employment agreement, upon which the LMIA and the work permit were based. The employee’s tasks were to inspect, test, maintain, and repair agricultural equipment including tractors, trucks, chainsaws and loaders. The adjudicator found that these tasks were not included in the definition of “farm worker” as defined in the regulation. Furthermore, the adjudicator looked at time sheets outlining the employee’s tasks and determined that except for summer months, the employee’s work was typically maintenance and repair of large-scale agricultural equipment. The adjudicator found that the employee’s principal employment activities did not fall within the definition of “farm worker” in the regulation and he was therefore entitled to overtime.
It was held that the employer had failed to pay the former employee, Mr.Kozisek, overtime, statutory holiday pay, annual vacation pay and compensation for length of service and had also made unauthorized deductions from his pay.
Did the employee fit the definition of “farm worker” in the regulation?
The regulation exempts employees whose principal employment responsibilities are farm work from being entitled to overtime and statutory holiday entitlements. Machtinger v HOJ Industries Ltd (1992) DLR (4th) 491 (SCC) was relied upon for the principle that the Employment Standards Act should be interpreted in a way which encourages employers to comply with minimum standards. Although the employer argued that the tribunal ought to look at the amount of time the employee spent as a farm worker compared to his other tasks, the tribunal did not accept this argument.
The tribunal looked to the fact that the employment agreement was drafted to allow the employer to obtain the LMIA. The tribunal also pointed out that the regulation does not prescribe the amount of time an employee spends on the tasks in the definition of “farm worker”, rather the key point is what the most important employment responsibilities are.
Looking at the LMIA and employment contract together, it was found that the only reason the employer hired the employee was because he had mechanic skills that no Canadian was available to perform. As a result, his principal, or most important employment responsibilities were those enumerated in the LMIA and not those of a farm worker, regardless of the amount of time he spent doing them. The appeal was dismissed.
The employment standards board will look at the principal nature of the employment to determine if an employee falls into a category that is exempt from overtime pay. If it is unclear whether an employee is entitled to overtime based upon their job description, the employment standards board will likely decide in favour of the employee. When considering whether an employee fits within a class of workers that are not entitled to overtime, employers should determine what the most important part of the employee’s role is and not simply the title or job description.