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.
The Act requires an employer to give two weeks vacation with pay for each year of service to an employee. However, it is the employer’s call when the employee will take his or her vacation? The employer can schedule his or her vacation within 10 months after he or she becomes entitled to. If the employer fails to do so, the employer loses the right to schedule employee’s vacation and the employee can take his or her vacation without the approval of the employer.
Some employers determine employee’s entitlement on the anniversary of the hire date while others may calculate differently, such as year end or the company’s fiscal year. The employee does not lose any entitlement from the date of hire to the date the employer has chosen for calculating his or her entitlement. The employee is entitled to the pro-rated amount of vacation time for the period.
Vacation pay is accrued at the rate of 4% of his or her wages which he or she can draw when going on vacation. In the case of salaried employee, the salary continues when the employee goes on vacation. In the case of hourly employees or employees who are paid in a manner which is different from a regular salary, such as commission or on a number of pieces the employee produces etc., the vacation pay is calculated as stated above.
All employees are entitled to vacation pay whether they are part-time or full-time. There is no waiting period for the employee to qualify for vacation pay. He or she is entitled to vacation pay from the time they become employee. Employees who do not have regular work week are entitled to vacation equal to two times the average number of days the employee works over a year.
The Act does not provide more than two weeks vacation regardless of the number of years an employee works for the employer, although, the employer is free to provide grater benefit. Likewise, the vacation pay is calculated at 4% regardless of the number of weeks the employee gets under company benefits unless the contract of employment clearly states so. For example, if the employee gets three weeks vacation under company plan, it does not translate into 6% vacation pay unless the contract of employment specifically requires or the employer voluntarily pays.
The employer must give vacation of one or two weeks at one time unless the employee requests in writing and the employer agrees to the employee’s request in writing for a shorter 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 [email protected]
If you don’t have access to e-mail; you can fax your question at (905) 331-1805.
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