Public holiday, agreement to work, ordinarily a working day

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 27(1) of the Act states:
An employer and employee may agree that the employee will work on a public holiday that would ordinarily be a working day for that employee, and if they do, section 26 does not apply to the employee.
This section requires that the employee may agree to work on a public holiday which is normally his working day but that the agreement to work must be in writing that clearly states the terms and conditions of working on a public holiday. Under this agreement, section 26 would not apply to this employee. In addition, the agreement must be voluntary and reached prior to the date of the public holiday.  
If there is an oral agreement rather than a written one or if it is not voluntary, such an agreement cannot be enforced and the employee would be entitled to public holiday in accordance with section 26 of the Act. .
As an example, if the employee worked on a public holiday without having a written agreement and is paid his or her regular wages, a violation of the Act would occur. That is, the employee should have been given a day off and also paid for the public holiday. In determining how much he or she should have been paid, the wages earned for working on public holiday would not be taken into account.
Section 27(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 hours worked on the 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 employee and the employer agree, the employer shall pay to the employee public holiday pay for the day plus premium pay for each hour worked on that day.     
This section requires that the employee be paid his or her regular wages for the hours worked on a public holiday and also be given another day off which is, his or her normal working day. The employee may also agree to be paid premium rate for hours worked on public holiday plus public holiday pay.
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 [email protected]

If you don’t have access to e-mail; you can fax your question at (905) 331-1805.


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