Requirement to work on a public holiday in Ontario

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 28 (1) of the Act states:
If the employee is employed in a hospital, a continuous operation, or a hotel, motel, tourist resort, restaurant or tavern, the employer may require the employee to to work on a public holiday that is ordinarily a working day for the employee and that is not a day on which the employee is on vacation, and if the employee does so, section 26 and 27 do not apply to the employee.
This section provides clarification that under some circumstances, the employer can require an employee to work on a public holiday for the simple reason that certain operations cannot be closed because of the nature of business. Under these situations the employee loses the entitlement to public holiday under section 26 and 27, instead, the employee’s entitlement on public holiday flows from section 28 (2).
Section 28 (2) of the Act states:
Subject to subsection (3) and (4), if an employer requires an employee to work on a Public holiday under subsection (1), the employer shall,
     (a)   pay to the employee wages at his or her regular rate for the hours worked on the public holiday and substitute another day that would ordinarily be a working day for the employee to take off work and for which he or she shall be paid public holiday pay as if the substitute day were a public holiday; or   
    (b)   pay to the employee public holiday pay for the day plus premium pay for each hour worked on that day.
This section requires that that the employer pay the employee his regular wages on public holiday and give another day off which is his ordinarily a working day and also pay him or her public holiday pay or pay the employee premium rate for the hours worked on a public holiday plus the public holiday pay.
It is the employer that chooses which way the employee gets paid.
Section 28 (3) of the Act states:
A day that is substitute for a public holiday under clause (2) (a) shall be,
    (a)    a day that is no more than three months after the public holiday; or
    (b)    if the employer and the employee agree, a day that is no more than 12 months after the public holiday.
This section requires the employer to schedule the substitute day within three months of the public holiday or if they both agree, it can be scheduled within 12 months. The agreement must be in writing or else clause (a) shall apply.
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  

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

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