For the May long weekend, I posted the top 5 public holiday questions that clients
have asked me over the years. Well, another long weekend is upon us
and, yes, there are more questions that I am tasked with answering.
Below are 5 additional public holiday questions and answers under
the Employment Standards Act, 2000 ("ESA").
We have a company practice of having employees observe all
public holidays on a Friday. Is this permissible?
Technically, the public holidays must be observed on their
correct days. However, to the extent that an employer provides MORE
holidays than the 9 statutory holidays set out in the ESA, the
employer can claim a "greater right or benefit" is being
provided to staff and, as such, the strict ESA rules will generally
My company is a 24/7 operation. We have never allowed our
staff to have Canada Day off. Is that permissible?
Yes, it is permissible. As a "continuous operation",
employers may require employees to work on the public holiday if
the holiday falls on a day that the employee would normally work
and the employee is not on vacation. However, employers must either
(i) provide a substitute holiday off with public holiday pay; or
(ii) pay the employee public holiday pay + premium pay for the day
worked. Besides a "continuous operation", the same
applies to employees in certain other industries (e.g. hotel,
tourist resort, nursing homes, etc.).
Our staff would like to choose when they take their
substitute holiday? Do we have to give them that option?
No, you do not. When an employee works on a public holiday,
he/she is entitled to be paid regular wages for the day and take a
substitute holiday with public holiday pay. The language in the ESA
states that "the employer shall...substitute
another day that would ordinarily be a working day for the employee
to take off work..." The substitute day must be taken within 3
months (or within 12 months with the employee's agreement).
Therefore, employers can generally pick the substitute holiday so
long as the substitute holiday is an ordinary working day for the
employee and taken within 3 months. In other words, if an employee
wants the substitute holiday to be on a Friday, the employer does
not have to comply with this request.
We recently dismissed an employee who did not take his
substitute holiday. Do we have to pay him out?
Yes, an employee whose employment ceases (regardless of the
reason) must be paid public holiday pay for the substitute day yet
to be taken.
We have many staff currently on leave and lay-off, are they
eligible for public holiday pay?
Yes, staff on leave/lay-off are still employed and therefore
generally entitled to public holiday pay. However, because the
formula for public holiday pay takes into account the last 4
weeks' wages divided by 20, if no wages have been paid during
the last 4 weeks, the public holiday pay total will equal zero. If
some wages were paid, the public holiday pay will be minimal and
certainly less than a full day's pay.
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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