The Employment Standards Act is the law that contains basic rules about employing people and working. Both employees and employers have rights and
responsibilities under the Act.
Does the Act cover all employees in Ontario?
Most employees are covered by the provincial legislation. However, employees working in industries that fall under Federal jurisdiction, such as, Post office, Banks, Railways, Radio stations, Airlines, Television stations etc. are not covered.
If you are member of the trade union and your contract of employment is governed by the collective agreement, you may not be covered by the Act.
If you are currently employed with the company, you may be able to file a claim with a request that your name not be disclosed. The Act protects you when you are exercising your rights under it.
The following holidays are recognized as public holidays under the Act and are governed by special rules.
1. New Year
2. Family Day
3. Good Friday
4. Victoria Day
5. Canada Day
6. Labour Day
7. Thanksgiving Day
8. Christmas Day
9. Boxing Day
The entitlement to public holiday depends on several factors such as, if it was employee’s normal working day or if the employee normally works on a public holiday or the type of workplace or if there is a written agreement between the employee and the employer.
The Act requires one of the following:
1. a day off with payment of public holiday pay;
2. payment of regular rate for hours worked on public holidayplus a day off with public holiday pay;
3. payment of public holiday pay plus premium pay for each hour worked on public holiday;
(It is up to the employer to choose 2 or 3 method of payment. In situation 2, the employee gets a day off plus normal wages for working on a public holiday while in 3, the employee does not get any time off)
4. premium pay for hours worked on public holiday for those who do not qualify for public holiday pay under certain circumstances.
5. payment of public holiday pay for an employee who has been terminated before taking the designated day off as in 2.
Most employees are entitled to public holiday pay unless he or she fails to work a day before the holiday and a day after the holiday without reasonable cause. The employee may also lose entitlement to public holiday pay if he or she fails to work entire scheduled shift if they agreed to do so in the first place. However, they are still entitled to premium pay for hours worked.
The premium pay is defined as 1.5 times the regular hourly rate. Employees on salary are treated likewise by converting their regular wages into hourly rate.
Following persons are not entitled to Public Holiday Pay:
1. Employees and employers that fall under federal jurisdiction.
2. Employees of an embassy or consulate of a foreign nation and their employees
3. Construction employees who are paid at least 7.3 per cent of their hourly rate or wages for vacation pay or holiday pay.
4. “Elect to work” are employees who can choose to work or not when required without any consequences. However they are still paid premium rate for working on public holiday.
If you or the employer disagrees with the investigating officer’s decision, both parties have a right to appeal to Ontario Labour Relations Board within 30 days of the officer’s decision. The Board appoints a referee to hear the appeal. It does not cost the employee to request an appeal but the employer may be required to deposit monies in trust with the Ministry of Labour if it is found to be owing. The referee decision is final and binding on both parties.
In the past, the Ministry was very aggressive in defending the rights of an employee and would send a legal counsel to represent the employee at the Board’s hearing to deal with the matter. It rarely does so now. Obviously, the employer has advantage over the employee in these circumstances. The question arises, should the employee also engage the services of a professional? It is my view, employee’s may not engage such services at the officer’s level hearing but may do so at the at the referee level hearing, particularly, if the issues are complex.
It is important that if a hearing has been scheduled, the employee must attend such a hearing to present evidence to support its position or to contest the employer’s evidence, otherwise, the officer or the referee may rely on the evidence of the employer to render a decision.
This information is provided for guidance only and should not be considered as a legal advice.
This article is provided by Rajinder K. Batra, who is a retired Employment Standards Officer with the Ministry of Labour with 15 years experience in these matters.
If you have any questions regarding your employment, please contact the writer by e-mail at firstname.lastname@example.org
If you don’t have access to e-mail; you can fax your question at (905) 331-1805.