Know Your Right – APPROVAL TO FOREGO VACATION

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.

Section 41(1) and 41(2) of the Act states:

If the Director of Employment Standards Program of the Ministry of Labour approves and an employee’s employer agrees, an employee may be allowed to forego taking vacation to which he or she is entitled under this part.

(2)     Nothing in subsection (1) allows the employer to forego paying vacation pay.

There are two aspects to the entitlement to vacation under the Act. One is time off and the other is pay during time off. Employees on salary have their salary continued during the time off they take as vacation. Employees who are not on salary or are working irregular hours or even if they work regular hours, are paid hourly rate or receive their wages in some other fashions such as commissions etc. are entitled to time off as well as vacation pay. This section clarifies that if the Director of Employment Standards Program of the Ministry of Labour approves and the employee’s employer agrees, the employee may be able to forego time off but that does not mean he or she does not get vacation pay. Vacation pay entitlement must be treated separately from the entitlement to time off as vacation.

At all time, it must be noted that the requirements under the Act, cannot be disregarded by the employer and the employee even if they agree to do so. The employer can certainly give greater benefits than required under the Act but under no circumstances, the employer is allowed to give anything less than specified under the Act.

Section 41.1(1) of the Act states:

An employee is entitled to receive the following statements on making a written request:

    (1)     After the end of vacation entitlement year, a statement in writing that sets

              out the information contained in the record the employer is required to

              keep under subsection 15.1 (2).

    (2)     After the end of a stub period, a statement in writing that sets out the

              information contained in the record the employer is required to keep

              under subsection 15.1 (3).

A stub period is defined as a period between the date of hire and the start of vacation year if the employer’s vacation year starts on a different date than the employee’s hires date.

This section clarifies that the employer must provide complete account of how the employee’s vacation as well as vacation pay is calculated?

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.