Public Holiday Pay (Part Two)

What is the Employment Standards Act?

 
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
 
An employee’s public holiday pay is calculated as:
 
The total amount of all regular wages earned and vacation pay payable in the four weeks prior to the work week in which the public holiday occurred divided by 20.
 
There is no requirement that the employee has to have worked for specific period before qualifying for public holiday pay. In spite of this, employees who have been on the job for less than 4 weeks would be entitled to public holiday pay on a pro-rated basis.
Likewise, part-time employees would be paid on a pro-rated basis. That is, even though,
They have worked for less than 20 days in the 4 week prior to public holiday, the wages would be divided by 20 rather than the number of days they have worked.
      
“regular wages” exclude wages due to overtime, public holiday pay, premium pay, vacation pay, termination and severance pay.
 
Note: The employer can substitute a public holiday with another day that can be taken in future. However, if the employee has not taken that day yet and his employment ends, the employer would pay public holiday pay as if the substituted day was a public holiday.
Example: When the employee is on vacation:
 
.           The employee worked eight hours/day, five days/week at an hourly rate $12.50;
.            received vacation pay when he took vacation;
.           was on vacation for two weeks during the four work weeks prior to the work week in which public holiday occurred.
.           was not otherwise absent from work during those four weeks.
 
To calculate public holiday pay:
 
1)         regular wages earned in the four weeks before the work week in which public holiday occurred: $2000 plus vacation pay payable to the employee for the four weeks of work prior to public holiday $0; vacation pay is calculated $0 because he is paid vacation pay when he goes on vacation and not other time.
 
2)         $2000 divided by 20 = $100 public holiday pay.
 
Example: Absent due to illness
 
In this situation, the wages earned are only for the days he actually worked. For instance, if he was sick for two days, two days wages would be deducted.
 
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 esaconsulting@hotmail.com

If you don’t have access to e-mail; you can fax your question at (905) 331-1805.

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