Timing of 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 35 of the Act states:
 
The employer shall determine when an employee shall take his or her vacation subject to the following rules:
 
1.     The vacation must be completed no later than 10 months after the end of the
        vacation entitlement year for which it is given.
2.     The vacation shall be a two-week period or two periods of one week each,
        unless the employee requests in writing that the vacation be taken in shorter
        periods and the employer agree to that request.
 
This section requires the employer to schedule employee’s vacation within 10 months after he or she has completed a vacation entitlement year, that is, if the employer has established a different time frame for the purpose of calculating vacation than the date of hire or anniversary date. If the employer fails to carry out this obligation, it loses the right to schedule employee’s vacation and the employee may take vacation without the approval or consent of the employer. However, the employee cannot take vacation without the approval or consent of the employer within 10 months after completing vacation entitlement year. If the employee does so, he or she may be considered to have abandoned the job thus losing the right to notice of termination or termination pay.
 
The employer should give the employee at least two weeks continuous vacation or two periods of one week each at a time, unless the employee requests in writing that he or she would take shorter period and the employer agrees to the employee’s request. As an example, the employee may wish to take vacation one day at a time or some other combination, the employee must make such a request to the employer in writing and the employer must agree to it. In other words, it is up to the employer to agree to a vacation schedule which is different from either two weeks vacation at a time or two periods of one week.
 
If the employer gives more than two weeks vacation, the employer is subjected to these requirements only for the two weeks that is the required minimum under the Act. For greater than two weeks vacation, the employer is free to schedule employee’s vacation as it sees fit, that is, if the employer chooses to give extra vacation one day at a time or some other combination, it can do so without being considered to have violated the Act.
 
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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