Policy vs Practice in Canadian Workplaces: What Employers Must Do to Ensure Policies Are Actually Followed

Most Canadian employers have a written overtime policy. It says overtime must be pre-approved. It is clearly documented in the employee handbook. And yet, a manager sends a message at 9:30 PM asking an employee to finish a report. The employee works an extra two hours. No pre-approval. No documentation. No overtime recorded. Here is the problem: under Ontario Regulation 285/01, section 6(1), work is deemed to be performed for the employer where it is "permitted or suffered to be done by the employer" — or where it is "in fact performed by an employee although a term of the contract of employment expressly forbids or limits hours of work or requires the employer to authorize hours of work in advance." The policy exists. The practice does not match it. And legal risk is assessed based on what actually happened in practice, not only what the written policy said. This gap — between what a policy says and what actually happens on the ground — is one of the most dangerous compliance risks for small and mid-sized employers. It does not show up in a handbook review. It shows up during a dispute. This is relevant to your workplace if any of the following occur: Managers make informal exceptions to written rules — "just this once" approvals that become patterns Overtime work happens without pre-approval or documentation Discipline is applied inconsistently — some employees are warned, others are not Harassment or workplace complaints are handled informally instead of through the documented process Remote employees work outside scheduled hours without tracking The following areas are where written policies and daily practice most commonly diverge: Overtime — Work is performed outside scheduled hours without approval or recording — often triggered by after-hours messages from managers Discipline — Progressive discipline steps are skipped, or consequences vary depending on the employee or manager involved Harassment — Complaints are handled through informal conversations instead of the documented investigation process Remote work — After-hours work is untracked, and expectations around availability are unclear or inconsistent Attendance — Late arrivals or absences are handled differently across teams, creating inconsistency in enforcement In each case, the policy exists — but the daily operation of the business does not follow it. A company's handbook states that all overtime must be pre-approved in writing by a supervisor before the work is performed. This is a common and reasonable policy. In practice, a team lead regularly messages employees after hours asking them to complete urgent tasks. The employees comply. The work is not recorded as overtime. No pre-approval is obtained. Three months later, an employee files a wage complaint. They provide screenshots of after-hours messages and evidence of work completed outside scheduled hours. The employer's defence — that overtime was not pre-approved — is significantly weakened by the pattern of practice. This principle has been tested in court. In the federally regulated context, the class action Fulawka v. Bank of Nova Scotia (2010 ONSC 1148; affirmed 2012 ONCA 443) involved approximately 31,000 customer service employees across Canada who challenged the bank's overtime pre-approval policy. Because Scotiabank is a federally regulated employer, the case was decided under the Canada Labour Code — but the principle it illustrates applies broadly. The bank required management pre-approval of overtime hours. Employees argued they were required to work overtime to fulfill their roles, and that the workplace culture discouraged them from requesting overtime pay. The Ontario Superior Court found that under the Canada Labour Code, the word "permitted" in the overtime provision means overtime work that is "allowed" or "not prevented" by the employer. The court ruled that if the employer does not prevent the overtime from being worked, the overtime must be paid at overtime rates. Pre-approval is not a precondition for payment. A similar principle exists under Ontario's Employment Standards Act. Ontario Regulation 285/01, section 6(1), deems work to be performed for the employer even where a contract expressly forbids or limits hours, if the work was in fact performed. The Fulawka court also found that the employer's recordkeeping practices did not comply with the Code, because the Code requires employers to keep a record of hours worked each day and amounts paid in overtime. Inaccurate records that failed to capture actual hours worked were not sufficient. Ontario's own guide to the Employment Standards Act confirms that activities such as reviewing or drafting emails from home can count as working time, even where a disconnecting-from-work policy is in place. The takeaway: actual workplace practice can significantly weaken an employer's ability to rely on the written policy. Closing the gap between policy and practice requires deliberate, ongoing action: Train managers on how poli