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 30 (1) of the Act states:
An employee and employer may agree that the employee will work on public holiday that falls on a day that would not ordinarily be a working day for that employee or on a day on which the employee is on vacation, and if they do, section 29 does not apply to the employee.
This section clarifies that the employer and the employee may agree in writing that the employee will work on a public holiday which is not normally his working day, the entitlement would be based on section 30 (2) of the Act rather than as set in section 29.
Section 30 (2) of the Act states:
Subject to subsection (3) and (4), if an employer and an employee make an agreement under subsection (1),
(a) the employer shall pay to the employee wages at his or her regular rate for the for the hours worked on 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) If the employer and the employee agree, the employer shall pay the employee public holiday pay for the day plus premium pay for each hour worked.
This section states that if the employee works on a public holiday, he or she must be given another day off which is normally a working day and in addition, must be paid his or her regular wages for the hours worked. The employer and the employee may also agree that instead of getting a day off, he or she will be paid public holiday pay plus premium rate for the hours worked on public holiday.
Section 30 (3) of the Act states:
A day that is substituted 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 employee and the employer agree, a day that is no more than 12 months after the public holiday.
This section requires that the employer must give the substituted day within three months of the public holiday or they can agree that the substituted day would be given within 12 months of 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.