Public holiday not ordinarily a working day 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 29(1) of the Act states:
 
If a public holiday falls on a day that would not ordinarily be a working day for an employee or a day on which the employee is on vacation, the employer shall 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.
 
This section clarifies that the employee must be given a day off if the public holiday falls on a day on which he or she normally does not work and also must be paid public holiday pay for this day. For an employee who normally works Monday to Friday, it means if the public holiday falls on Saturday or Sunday, he or she must be given a day off say, Monday and be paid for that day. For those who work part-time, again, he or she should be given time off based on the average hours they work in the 4 weeks prior to the public holiday and be paid for those hours. Employees already on vacation are also entitled to public holiday on the same basis.
 
Section 29(2) of the Act states:
 
A day that is substituted for a public holiday under section (1) shall be,
 
     (a)    a day that is no more than three months after the public holiday; or
     (b)    if the employee and the employer agree, a day that is no more than 12      
             months after the public holiday.
 
This section defines when the substitute day should be given. It is up to the employer to schedule the day off. It could also be a day prior to the public holiday. Any agreement between the employer and the employee must be in writing and must be signed prior to the expiry of three months after the public holiday.
 
Section 29(2.1) states:
 
If a public holiday falls on a day that would not ordinarily be a working day for an employee and the employee is on a leave of absence under section 46 or 48 or on a layoff on that day, the employee is entitled to public holiday pay for the day but has no other entitlement under this Part with respect to public holiday.
 
This section clarifies that all employees irrespective whether they are on layoff or have taken leave of absence are entitled to public holiday pay but not to a substitute day off.   
 
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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