Right to vacation 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 33 (1) of the Act states:
 
An employer shall give an employee a vacation of at least two weeks after each vacation entitlement year that he or she completes.
 
This provision provides that all employees are entitled to vacation of at least two weeks after completing a year of service. The employer is able to designate vacation entitlement year as it suits its business. In other words, it does not have to be a calendar year or on the anniversary of his or her hire date. The employee does not lose any vacation entitlement if the employer has established a different vacation entitlement date.
 
The employer has been given the responsibility to ensure that each employee receives the minimum statutory requirement. Where the employer has established an “alternative vacation entitlement year”, section 34 establishes the employee’s entitlement to a pro-rated amount of vacation time for the period of employment that precedes the first alternative vacation entitlement year.
 
The right to two weeks of vacation time accrues only after completion of each 12 month vacation entitlement year. However, vacation time may be taken prior to the expiry of the 12 months entitlement year if the employer is agreeable to this or if the contract of employment clearly provides for that entitlement. The Act does place the restriction on the employer to give vacation entitlement within 10 months after completing 12 months of service.  
 
The Act does not restrict the employer to provide more than two weeks vacation for each year of service but only that it cannot be less than two weeks. The Act distinguishes between vacation time and vacation pay. The fact that the employer provides greater benefit regarding vacation time, it does not necessarily mean that vacation pay too would be greater than the minimum required. For vacation pay to be grater than the minimum 4%, the contract of employment must clearly state so, otherwise, it is 4%.
 
Section 33(2) of the Act states:
 
Both active employment and non-active employment shall be included for the purpose of subsection (1).
 
This section clarifies that total employment period is used for calculating employee’s entitlement. It does not matter if he or she was considered as an active employee. As long as the employer/employee relationship remains, the total period is taken into account for the purpose of calculating his or her entitlement. However, vacation pay is calculated on the basis of wages earned during this period of active or non active period.  
 
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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