Public holiday not ordinarily a working day in Ontario (Part 2)

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.
 
Lay-off Resulting in Termination:
 
Section 29(2.2) of the Act states:
 
Subsection (2.1) does not apply to an employee if his or her employment has been terminated under clause 56(1)(c) and the public holiday falls on or after the day on which the lay-off first exceeded the period of temporary lay-off.
 
This section clarifies that if the employee has been on lay-off for 13 weeks or more before the public holiday falls, he or she is not entitled to public holiday. The employee is considered terminated when he or she is on lay-off for 13 weeks. If the employee is considered terminated then he or she is no longer employee and thus not entitled to public holiday.   
 
Agreement:
 
Section 29(3) of the Act states:
 
An employer and an employee may agree that, instead of complying with subsection (1), the employer shall pay the employee public holiday pay for the public holiday, and if they do subsection (1) does not apply to the employee.
 
This section provides the employer and the employee to agree in writing that instead of giving a day off with pay, the employer can give the employee holiday pay.
 
Exception:
 
Section 29(4) of the Act states:
 
The employee has no entitlement under subsection (1), (2.1), or (3) 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 section requires that in order to qualify for a public holiday entitlement, the employee must work a day before the public holiday and the day after the public holiday. If he or she does not work on these days then the employee must have a reasonable explanation for not working, that is, was either sick or had some other emergency that prevented him or her to work on those days. If the employee does not have reasonable explanation for not working on these days, he or she loses entitlement to public holiday.
 
Note: An employee who is entitled to a substitute holiday in accordance with section 29 (1) does not lose that entitlement if or she fails to without reasonable cause to work all of his or her last regularly scheduled day of work before or first regularly scheduled day of work after the substitute holiday. An employee does not have to “requalify” for the substitute holiday once they have already earned it.
 
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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