Approval to Forego 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 41(1) and 41(2) of the Act states:
 
If the Director of Employment Standards Program of the Ministry of Labour approves and an employee’s employer agrees, an employee may be allowed to forego taking vacation to which he or she is entitled under this part.
 
(2)     Nothing in subsection (1) allows the employer to forego paying vacation pay.
 
There are two aspects to the entitlement to vacation under the Act. One is time off and the other is pay during time off. Employees on salary have their salary continued during the time off they take as vacation. Employees who are not on salary or are working irregular hours or even if they work regular hours, are paid hourly rate or receive their wages in some other fashions such as commissions etc. are entitled to time off as well as vacation pay. This section clarifies that if the Director of Employment Standards Program of the Ministry of Labour approves and the employee’s employer agrees, the employee may be able to forego time off but that does not mean he or she does not get vacation pay. Vacation pay entitlement must be treated separately from the entitlement to time off as vacation.
 
At all time, it must be noted that the requirements under the Act, cannot be disregarded by the employer and the employee even if they agree to do so. In other words, these rights cannot be waived or negotiated away. The employer can certainly give greater benefits than required under the Act but under no circumstances, the employer is allowed to give anything less than specified under the Act. If the employer tries to provide less than required, the employee has a right to file a claim with the Ministry to enforce the provisions of the Act.
 
Section 41.1(1) of the Act states:
 
An employee is entitled to receive the following statements on making a written request:
 
     (1)     After the end of vacation entitlement year, a statement in writing that sets
               out the information contained in the record the employer is required to
               keep under subsection 15.1 (2).
 
     (2)     After the end of a stub period, a statement in writing that sets out the
               information contained in the record the employer is required to keep
               under subsection 15.1 (3).
 
A stub period is defined as a period between the date of hire and the start of vacation year if the employer’s vacation year starts on a different date than the employee’s hires date.
 
This section clarifies that the employer must provide complete account of how the employee’s vacation as well as vacation pay is calculated?
            
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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