AGRREMENT TO WORK ON PUBLIC HOLIDAY (RESTRICTIONS)

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 the employer and the employee enter into a written agreement that the employee will work on a public holiday, the employee would be entitled to his or her regular wages for working on a public holiday and in addition also a day off which is his or her normal working day. The employee is expected to work normal scheduled day before the public holiday and after the public holiday and if it does not happen, the employee must have a reasonable cause and if the employee does not have a reasonable cause, he or she would be entitled to premium pay for working on public holiday. These entitlements are subject to following conditions:

Where certain work not performed

If the employee, without reasonable cause, performs none of the work that he or she agreed to perform on the public holiday, the employee has no entitlement.

If the employee, with reasonable cause, performs none of the work that he or she agreed to perform on the public holiday, the employer shall give the employee a substitute day off work, public holiday pay for the public holiday.

If the employee performs some of the work that he or she agreed to perform on the public holiday but fails, without reasonable cause, to perform all of it, the employer shall give the employee premium pay for each hour worked on the public holiday but the employee has no other entitlement.

If the employee performs some of the work that he or she agreed to perform on the public holiday but fails, with reasonable cause, to perform all of the work that he or she agreed to perform on the public holiday, the employer shall give the employee wages at his or her regular rate for the hours worked on the public holiday and a substitute day off work.

Section 31 of the Act states:

If the employee receives premium pay for working on a public holiday, the hours worked shall not be taken into consideration in calculating overtime pay to which the employee may be entitled.  

This section clarifies that the same hours worked can not be counted twice.

Section 32 of the Act states:

If the employment of an employee ends before a day that has been substituted for a public holiday under this part, the employer shall pay the employee public holiday pay for that day.

This information is provided for guidance only and should not be considered as a legal advice.

If you have further questions regarding your entitlements under the Act, please send your questions by e-mail at esaconsulting@hotmail.com or by fax at (905) 331-1805.