Legalese | Apr 24, 2013
The information in this column was provided by Community Legal Education Ontario in its monthly email alert “On the Radar”
Many of us look forward to the long weekend in May as the "unofficial" beginning of the summer. In anticipation of Victoria Day on May 20 and the other upcoming long weekends, this month's On the Radar looks at what the law says about public holidays.
Does everyone get the holiday Monday off work?
For most workers, Victoria Day is a public holiday under Ontario's Employment Standards Act (ESA). The ESA sets out minimum rules that employers must follow, including rules about public holidays. However, not all jobs are covered by the ESA, and, in some cases, only parts of the ESA apply. There is more information about when the ESA applies in the Ontario Ministry of Labour's Special Rule Tool at www.labour.gov.on.ca/english/es/tools/srt/index.php.
Most workers have the right to get the day off with holiday pay. It does not matter whether they work full-time or part-time, how long they have worked in their jobs, or whether the holiday falls on a day that they would usually work. But they must work their regular work day, before and after the holiday, unless they have "reasonable cause". Examples of reasonable cause include illness or injury. It is up to the worker to show that they had reasonable cause to miss work.
How much is holiday pay?
Holiday pay is calculated by adding up a worker's regular wages plus vacation pay for the four work weeks prior to the work week with the holiday in it, and dividing that total by 20. There is a Public Holiday Pay Calculator on the Ministry of Labour's website at.gov. www.labour on.ca.
What if someone is willing to work on the holiday?
A worker who agrees to work on the holiday has a choice. They can get holiday pay plus premium pay, which is 1½ times their regular wage, or get regular wages for the hours they work on the holiday and take another day off instead with holiday pay. The substitute day off has to be within three months of the holiday or, if the worker agrees, within 12 months. These agreements should be in writing.
What about people who are required to work?
In some jobs – for example, in hospitals or restaurants – workers can be required to work on public holidays. In that case, the employer has the right to decide whether the worker gets premium pay or another day off instead.
A worker may be able to make a claim against their employer. The Ministry of Labour can order an employer to pay money that is owed. The worker should contact their employer about the problem before making the claim, unless there is a good reason not to.
In general, the worker must file a claim for unpaid wages within six months of the date the wages were owing. If the claim does not involve unpaid wages, the time limit may be up to two years. For example, workers have up to two years to file a claim against an employer for penalizing or threatening to penalize them for exercising their legal rights. Asking about the right to a holiday or asking an employer to obey the law is an exercise of legal rights.
Some employers may say that their workers are self-employed and that the ESA does not apply to them. Workers in this situation might still have rights under the ESA and should get legal advice.
For more information or help
The Ministry of Labour website has information about public holidays and Employment Standards Claim Forms. You can also call the Ministry at 1-800-531-5551
For legal information, advice, or help, workers can contact their local community legal clinic. Rural Legal Services is a community legal clinic serving northern Frontenac and northern Lennox & Addington counties.
Workers who are discriminated against or harassed may want to make a human rights complaint. For advice and help, contact the Human Rights Legal Support Centre by visiting http://www.hrlsc.on.ca/ or calling 1-866-625-5179.
This column is brought to you by Community Law School (Sarnia-Lambton) Inc., and Community Legal Services and Pro Bono Students Canada at Western University, with funding support from the Law Foundation of Ontario. It provides legal information only. The information is accurate as of the date of publication. Laws change frequently so we caution readers from relying on this information if some time has passed since publication. If you need specific legal advice please contact a lawyer, your community legal clinic: Rural Legal Services at (613) 279-3252 or 1-888-777-8916, Justice Net at 1-866-919-3219, or the Law Society Referral Service at 1-800-268-8326.