Public Holiday Pay: What You Need to Know

Read on to get answers to some of the most common questions about holiday pay in Ontario.

What are the statutory holidays in Ontario?

In Ontario, there are 9 public statutory holidays for which employees are entitled to take off work and be paid.

  • New Years Day
  • Family Day
  • Good Friday
  • Victoria Day
  • Canada Day
  • Labour Day
  • Thanksgiving Day
  • Christmas Day; and
  • Boxing Day.

Easter Sunday, Easter Monday, the first Monday in August and Remembrance Day are not public holidays.

Can employers force employees to work on statutory holidays?

Sometime yes and sometime no.

In most industries, employers cannot require employees to work on statutory holidays; however, if an employee agrees in writing – paper or electronic – then they may work but are entitled to either:

  1. Pay for that public holiday plus premium pay for all hours worked on that day; or,
  2. Regular wages for all hours worked on the holiday plus another substitute holiday off for which they are to be paid.

The employee gets to choose which of the above options they’d prefer. If they choose option 2, the employer must get the employees decision in writing.

If the business is “a hospital, a continuous operation, or a hotel, motel, tourist resort, restaurant or tavern”, then an employee may be required to work on public holiday if:

  1. That holiday would otherwise be ordinarily a working day; and
  2. That employee is not on a scheduled vacation;

If an employer requires the employee to work, then that employee is entitled to either:

  1. Pay for that public holiday plus premium pay for all hours worked on that day; or;
  2. Regular wages for all hours worked on the holiday plus another substitute holiday off for which they are to be paid.

In these circumstances, the employer gets to choose which of the above options they’d prefer.

How much is Premium Pay?

Premium pay must be at least 1.5 times an employees regular rate of pay.

How do Substitute Public Holidays Work?

If an employer is providing a substitute holiday to an employee, the employer must provide to the employee written notice that sets out:

  1. The public holiday which the employee is going to work;
  2. The date of the day that is substituted for the public holiday; and
  3. The date written notice is provided to the employee.

The substituted day must be no more than three months after the public holiday, unless the employee and employer agree in writing, then it must be no more than 12 months after the public holiday.

How to Calculate Statutory Holiday Pay?

An employee’s public holiday pay for any given public holiday is equal to the total amount of regular wages earned in the pay period immediately preceding the public holiday divided by the number of days the employee worked in that period.

Holiday Pay = Regular Wages / Days Worked

Note:

  • Regular wages does not include any overtime pay, vacation pay, public holiday pay, premium pay, personal emergency leave pay, domestic or sexual violence leave pay, termination pay, severance pay or termination of assignment pay payable to an employee.
  • If the employee was on leave or on vacation or both for the entire pay period before the public holiday, the regular wages earned by the employee in the pay period before the start of that leave or vacation, divided by the number of days the employee worked in that period is used to calculate the public holiday pay.
  • If the employee was not employed during the pay period before the public holiday, the public holiday pay is calculated using the regular wages earned by the employee in the pay period that includes the public holiday, divided by the number of days the employee worked in that period.[1]
Examples:

Freddie Full Time

Patrick Part Time

Olivia Occasional

  Freddie, Patrick and Olivia work for the same company. There is a two-week (or 10-business day) pay period and they each earn $20.00 Hour. In the pay period prior to the public holiday:

  • Freddie worked every day, 7.5  hours a day.
  • Patrick worked every afternoon except Fridays for 5 hours.
  • Olivia worked three 7.5 hour days.
Freddie’s Regular Wages = 10 days * 7.5 Hours * $20.00 per hour = $1,500 Patrick’s Regular Wages = 8 days * 5 Hours * $20.00 per hour = $800 Olivia’s Regular Wages = 3 days * 7.5 Hours * $20.00 per hour = $ 450
Holiday Pay = Regular Wages / Days Worked

= $1,500 / 10

Holiday Pay = $150.00

Holiday Pay = Regular Wages / Days Worked

= $800 / 8

Holiday Pay = $100.00

Holiday Pay = Regular Wages / Days Worked

= $450 / 3

Holiday Pay = $150.00

Yes, the above calculation is correct, Olivia who earned just over half of what Patrick earned in the previous pay period is entitled to more public holiday pay. You may be a little shocked and in fact there has been some controversy as a result. Nevertheless, as of today (Feb 2018), this is how public holiday pay is calculated in Ontario.

Anything else I might want to know?

Overtime – If an employee reviewed premium pay for work on a statutory holiday, then the hours worked do not count towards overtime.

Termination/Resignation  – If employment ends before the employee receives the substituted public holiday, then that employee is entitled to public holiday pay for that day.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btzlaw.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

 

[1] Ontario Ministry of Labour, Your Guide to the Employment Standards Act – Public Holidays (Online: Ontario.ca; Feb 2018);

I’ve been fired. Does my employer have to tell me why?

In short: no.

Although it can be frustrating for employees, Ontario employers are under no obligation to give a reason after terminating an  employee. In fact, Ontario employers do not need a reason at all to end an employment relationship and, therefore, are not required to prove that the employee did something wrong to explain why they were fired. Instead, an employer simply must provide the employee with reasonable notice.

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How much notice/severance should I get after being fired?

That’s a more complicated question then all of those “online severance calculators” make it seem. Before we delve into the factors which play a role, both employees and employers need a little context and exposition on how the Ontario wrongful dismissal system works.

Overview

Firstly, you need to understand that “notice” and “severance”, though often used interchangeably in common parlance, mean different things. Under the Employment Standards Act, severance pay is defined and is an amount of money an employer needs to pay an employee on termination if certain conditions are met. In addition to severance, employers must give notice of termination to employees.

Severance Pay

An employee is only entitled to severance pay if they have been employed for 5 years or more and:

  1. the termination occurred because of a permanent discontinuance of all or part of an employer’s business at an establishment and the employee is one of 50 or more employees who have their employment relationship severed within a six-month period as a result; or
  2. the employer has a payroll of $2.5 million or more.

If an employee is entitled to severance pay, they are to be paid severance in a lump sum amount equivalent to one week of non-overtime wages per completed year of employment up to a maximum of 26 weeks, within 7 days of termination.

Entitlements to severance are relatively well defined. It is the notice requirements of termination that require a more nuanced analysis.

Reasonable Notice of Termination

In Ontario, employers can give notice of termination to employees in two ways. Either,

  1. An employer can give notice ahead of time; or
  2. An employer can fire an employee right away, but provide “pay in lieu of notice” equivalent to what would have been earned over the notice period.

The first step in calculating the amount of notice depends on whether that employee’s termination is subject to a valid employment contract. If the employment contract contains a  clause that sets out the amount of notice an employee gets upon being fired and the contract is valid, then the employee is entitled only to the reasonable notice set out therein.  These contracts may be invalid or void ab initio (unenforceable from the beginning) for many reasons, including if they provide for less termination entitlements than the minimums established by Employment Standards Act.

If there is no contract, or the contract is not enforceable, then an employee is entitled to what the Ontario Courts call “reasonable notice”. Reasonable notice is always more than the minimum notice. The amount of  reasonable notice depends on many factors and is calculated by the Courts after considering all of the surrounding factors. Considerations include (1) age, (2) length of service, (3) character of employment and (4) availability of similar employment. Employees are entitled to more notice if:

  • they are older;
  • they worked somewhere a very short or a very long period of time;
  • their job was very specialized and it will be difficult to find comparable employment; or
  • the employer convinced them to leave another stable job.

An employee might also be entitled to further money on termination if the employer:

  • acted badly in the manner of termination;
  • fired you for a discriminatory reason;
  • fired the employee for insisting on his/her rights under the ESA;

Contact Justin W. Anisman

To contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing, call 416-833-8443 or email him at janisman@btzlaw.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

 

Important Upcoming Changes to the Ontario Workplace

On November 27, 2017, the Fair Workplaces, Better Jobs Act 2017 received royal assent and became Law in Ontario. Set out below are some of the most important changes to Ontario’s workplaces.

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Termination of the Employment Relationship in Ontario

Notice and Severance under the Employment Standards Act / The Minimum Standards

The Employment Standards Act, 2000 (the “ESA”) provides the minimum standards of employment with respect to, among many other things, overtime, hours of work, minimum wages, holidays, pregnancy and parental leave, and termination of employment in Ontario.

Under the ESA, employers are required to give their employees advance notice of termination in writing or, in the alternative, pay wages and continue benefits for the statutory notice period (commonly referred to as termination pay). With respect to the termination of a single employee (as opposed to mass firings or lay-offs), the minimum length of notice depends on the length of the terminated employee’s service:

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