Most employees are covered by the Act. There are only limited
exclusions of professionals and some employees in job creation or
It is not possible to "contract out" of the Act. The
Act applies regardless of the wishes of the employer and the
employee. The Act creates minimum terms and any agreement to waive
the benefit of the Act is of no effect. (The effect of the Act on
collective agreements will be considered in a future post.)
Watch out for
the agreeable employee: he will waive overtime pay if
he gets some additional shifts;
the flexible employee: she likes to work some extra
hours on some days and leave earlier on others;
the employee who performs two different functions: she
works as wait staff during the evenings and does marketing during
the day; and
"contractors": who are really employees and
are therefore entitled to overtime, vacation pay and the other
benefits of the Act.
If the regular work day and week are less than 8 and 40 hours,
extra hours worked up to those limits can be paid at straight time,
Averaging agreements may be used to permit an employee to work
longer hours in a particular time period without the necessity to
pay overtime (provided a written agreement is entered into in
accordance with the provisions of section 37 of the Act).
It may be possible to change duties or the way work is
performed to bring the employee into the exemptions from the hours
of work provisions (which are listed in Part 7 of the
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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