Public Holiday Ordinarily a Working Day

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.
 
Section 26(1) of the Act states:
 
If a public holiday falls on a day that would ordinarily be a working day for an employee and the employee is not on vacation that day, the employer shall give the employee the day off work and pay him or her public holiday pay for that day.
 
This requirement clearly defines employee’s entitlement when he or she is not on vacationand the public holiday falls on his working day.
 
If the employee is on salary and works Monday to Friday, it is not difficult to understand his or her entitlement but what if the employee is paid on an hourly basis. Again it is easy to understand his or her entitlement if he or she has regular hours of work but many times, we have to deal with situations that are not simple. What if the employee works part-time and his or her hours of work vary from week to week. In such situations, we look at what days he or she actually works on a regular basis rather than what days he or she is available to work. If the employee has been scheduled to work from Monday to Friday even though on an irregular basis, his or working day would be Monday to Friday. If on the other hand, the employee only worked from say, Tuesday to Thursday, his or her working day would not include Monday and Friday.
 
The same entitlement applies to employees who are on lay-off, pregnancy leave, family medical leave, personal emergency leave, declared emergency leave or any other leave of absence when a public holiday occurs, their pre-lay-off or pre-leave schedule would determine if the public holiday falls on their normal working day. In real terms, the public holiday pay would be small because it depends on the wages they earned 4 weeks prior to the public holiday.
 
Section 26 (2) of the Act states:
 
The employee has no entitlement under subsection (1) if he or she fails without reasonable cause, to work all of his or her last regularly scheduled day of work before the public holiday or all of his or her first regularly scheduled day of work after the public holiday.
 
This requires the employee to work their normally scheduled hours of work before as well as after the public holiday in order to be entitled to public holiday pay. The intent is to discourage employee from taking extra time off before or after the 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 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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