Part X - Public holidays

Part X provides for an employee’s right (subject to specified qualifying conditions) to:

1. A day off with public holiday pay on a public holiday (or on a day that has been substituted for the public holiday); or
2. If the employee agrees to or is required to work on the holiday, either public holiday pay plus a premium rate of pay, or another day off with public holiday pay.

The labour arbitration case of U.A.W., Local 569 v. Sealed Power Corp. of Canada (1971), 22 LAC 371 (Ont Arb Bd) spoke of three rationales for the public holiday entitlement:

1. The facilitation of religious or social activity:
2. Relief from the everyday pressures of a job; and
3. The payment of an entitlement earned through daily work.

Section 24 – Public holiday pay

Public holiday pay – s. 24(1)

Section 24(1) establishes how public holiday pay is to be calculated for the purposes of Part X of the ESA 2000.

Paragraph (a) provides for what is commonly referred to as a “pro-rating” formula for public holiday pay, based on a five-day work week (20 divided by four work weeks). At the time of writing, no other manner of calculation is prescribed pursuant to paragraph (b).

There were several significant changes to the public holiday pay provisions in 2018. See the text that is in red at the end of this section for details of the changes, information on which provisions applied at which points in time, and for the interpretation of the former provisions.

The amount of public holiday pay owing is calculated as follows:

1. The amount of regular wages as defined in ESA Part I, s. 1 earned by the employee in the four work weeks (see the definition below) before the work week in which the public holiday occurs;

   plus

2. The amount of vacation pay payable to the employee with respect to the four work weeks before the work week in which the public holiday occurs.
3. Take the total of the amounts obtained in 1. and 2., and divide that sum by 20.

Vacation pay can become payable in the following circumstances:

• Vacation pay that is payable to an employee before they takes their vacation, pursuant to ESA Part XI, s. 36(1);
• Vacation pay that is payable to an employee on or before the pay day for the period in which the vacation falls, where the employee is paid by direct deposit or where the employee does not take vacation in complete weeks, pursuant to ESA Part XI, s. 36(2);
• Vacation pay that is payable to an employee as it accrues pursuant to ESA Part XI, s. 36(3); and
• Vacation pay that is payable at a time agreed to in writing by the employee pursuant to ESA Part XI, s. 36(4).

In Munro Ltd. v Director of Employment Standards, 2015 CanLII 37329 (ON LRB), the Board determined that the employer must take into account the vacation pay earned by an employee in reference to their regular wages in the four-week period before the public holiday when calculating public holiday pay. The Board’s analysis hinged on the meaning of vacation pay payable, and found that s. 24(1) does not require the employer to take into account vacation pay actually paid in the four-week period. This decision is contrary to Program policy, which is that vacation pay payable means vacation pay paid or that ought to have been paid.

“Regular wages” is defined in ESA Part I, s. 1 as follows:

Work week is defined in ESA Part I, s. 1 as follows:

This means that the phrase in s. 24(1) that sets out the period over which the calculation of public holiday pay is to be performed - the four work weeks before the work week in which the public holiday occurred - does not necessarily refer to the four calendar weeks immediately preceding the public holiday.

For example, an employer has selected a work week of Monday to Sunday and the public holiday falls on a Thursday. The four work weeks with respect to which the public holiday pay calculation is performed will go backwards four weeks starting on the first Sunday (the last day of the employer’s work week) before the public holiday:

• Employer’s work week runs from Monday to Sunday.
• Public holiday falls on Thursday, December 25.
• Week 1: Monday, December 15 – Sunday, December 21
• Week 2: Monday, December 8 – Sunday, December 14
• Week 3: Monday, December 1 – Sunday, December 7
• Week 4: Monday, November 24 – Sunday, November 30

In this example, the regular wages earned and vacation pay payable to the employee in the four work weeks identified will be used in the calculation.

Which period to use for substitute holiday calculation

Note that in certain circumstances, employees are entitled to a substitute holiday and to be paid public holiday pay as if the substitute day were a public holiday – see for example ESA Part X, s. 27(2)(a). This means that when calculating the amount of public holiday pay owing for a substitute day, the period over which the calculation is performed is the four work weeks before the work week in which the substitute day falls, not the four work weeks before the work week in which the actual public holiday fell.

Sale of business in calculation period

An issue may arise as to the wages that are to be included where there has been a sale of a business shortly before a public holiday and an employee of the seller is hired by the purchaser. Specifically, the question is whether the calculation includes wages that were earned by the employee from the seller. For example, the four work weeks prior to Canada Day, over which the calculation of public holiday pay is performed is, for the sake of this example, June 1 to June 28. Employee ZZ had been working for Employer A. On June 25, Employer A's business was sold to Employer B. Employer B hired Employee ZZ, effective June 25. When determining Employer B's public holiday pay obligations towards Employee ZZ for Canada Day, does one include the wages that were earned by Employee ZZ under Employer A from June 1 to June 24? It is Program policy that the answer is yes. To say otherwise would undermine the general intent behind the continuity of employment provisions found in ESA Part IV, s. 9. Similarly, because s. 9 states that there is deemed to not be a termination or severance in circumstances such as the one in this example, the situation can be viewed as being the same employment relationship. Since s. 24(1)(a) refers to regular wages that are “earned” by the employee and vacation pay “payable” to the employee, all wages earned and vacation pay payable within that employment relationship are included, i.e., including those from the seller.

Examples of calculating public holiday pay

Example 1:

Employee:

• Works eight hours a day, five days a week, earning $200/day;
• Receives vacation pay when the vacation is taken (as opposed to on each pay cheque as it accrues, or at some other time);
• Was not on vacation during the four work weeks preceding the work week in which the public holiday occurred;
• Was not otherwise absent from work during those four work weeks.

To calculate public holiday pay:

1.  Regular wages earned by the employee in the four work weeks before the work week in which the public holiday occurred: $4000 ($200/day times 20 days worked)

   plus

2. Vacation pay payable to the employee with respect to the four work weeks before the work week in which the public holiday occurred: $0
   • = $4,000
3. $4000 divided by 20 = $200 public holiday pay

Example 2 – Employee takes a paid vacation during the four work weeks prior to public holiday

Employee:

• Works eight hours a day, five days a week, earning $200/day;
• Receives vacation pay when the vacation is taken (as opposed to on each pay cheque as it accrues, or at some other time);
• Was on a vacation for two of the four work weeks preceding the work week in which the public holiday occurred, for which the employee was entitled to receive $2000;
• Was not absent from work on any other day during those four work weeks.

To calculate public holiday pay:

1. Regular wages earned by the employee in the four work weeks before the work week in which the public holiday occurred: $2000 ($200/day times 10 days worked)

   plus

2. Vacation pay payable to the employee with respect to the four work weeks before the work week in which the public holiday occurred: $2000
   • = $4000
3. $4000 divided by 20 = $200 public holiday pay

Example 3 – Employee absent because of illness

Employee:

• Works eight hours a day, five days a week, earning $200/day;
• Receives vacation pay when the vacation is taken;
• Was not on vacation during the four work weeks prior to the public holiday;
• Was absent from work due to illness for two days during the four work weeks prior to the public holiday.

To calculate public holiday pay:

1.  Regular wages earned by the employee in the four work weeks before the work week in which the public holiday occurred: $3600 ($200/day times 18 days worked).
   • Note: the figure of $3600 would not increase if the employee received sick benefits while off work due to illness - the definition of wages in s. 1 specifically excludes benefit plan payments.

   plus

2. Vacation pay payable to the employee with respect to the four work weeks before the work week in which the public holiday occurred: $0
   • = $3600
3. $3600 divided by 20 = $180 public holiday pay

Example 4 – Employee gets vacation pay as it accrues

4A – Employee not on vacation during four work weeks prior to public holiday

Employee:

• Works eight hours a day, five days a week, earning $200/day;
• Receives vacation pay on each pay cheque as it accrues, pursuant to ESA Part XI, s. 36(3);
• Was not on a vacation during four work weeks prior to the work week in which the public holiday occurred;
• Was not otherwise absent from work for any other reason during those four work weeks.

To calculate public holiday pay:

1.  Regular wages earned by the employee in the four work weeks before the work week in which the public holiday occurred: $4000 ($200/day times 20 days worked)

   plus

2. Vacation pay payable to the employee with respect to the four work weeks before the work week in which the public holiday occurred: assuming the employee has fewer than five years of employment - $160 (4% times $4000)
   • = $4160
3. $4160 divided by 20 = $208 public holiday pay

4B – Employee is on unpaid vacation during four work weeks prior to public holiday

Employee:

• Works eight hours a day, five days a week, earning $200/day;
• Receives vacation pay on each pay cheque as it accrues, pursuant to ESA Part XI, s. 36(3);
• Was on a vacation for two of the four work weeks prior to the work week in which the public holiday occurred;
• Was not otherwise absent from work for any other reason during those four work weeks.

To calculate public holiday pay:

1. Regular wages earned by the employee in the four work weeks before the work week in which the public holiday occurred: $2000 ($200/day times 10 days worked)

   plus

2. Vacation pay payable to the employee with respect to the four work weeks before the work week in which the public holiday occurred: assuming the employee has fewer than five years of employment - $80 (4% of the wages earned during the 10 days the employee was at work)
   • = $2080
3. $2080 divided by 20 = $104 public holiday pay

Example 5 – Employee works less than five days a week

5A – Part-time employee

Employee:

• Works three days a week, five hours a day, earning $80/day;
• Receives vacation pay when vacation is taken;
• Was not on a vacation during four work weeks prior to the work week in which the public holiday occurred;
• Was not otherwise absent from work for any other reason during those four work weeks.

To calculate public holiday pay:

1. Regular wages earned by the employee in the four work weeks before the work week in which the public holiday occurred: $960 ($80/day times 12 days worked)

   plus

2. Vacation pay payable to the employee with respect to the four work weeks before the work week in which the public holiday occurred: $0
   • = $960
3. $960 divided by 20 = $48 public holiday pay

5B – Employee on compressed work week

Employee:

• Works 11 hours a day, 4 days a week, earning $220/ day;
• Receives vacation pay when vacation is taken;
• Was not on vacation during the four work weeks prior to the work week in which the public holiday occurred;
• Was not otherwise absent from work during those four work weeks.

To calculate public holiday pay:

1. Regular wages earned by the employee in the four work weeks before the work week in which the public holiday occurred: $3520 ($220 times 16 days worked)

   plus

2. Vacation pay payable to the employee with respect to the four work weeks before the work week in which the public holiday occurred: $0
   • = $3520
3. $3520 divided by 20 = $176 public holiday pay

Note that even though this employee is full-time, in the sense that they work full-time hours, the amount of public holiday pay owing will be a pro-rated amount of their regular daily wage because they work less than five days a week.

Example 6 – Employee works overtime

Only regular wages and vacation pay are included in the calculation of public holiday pay. Regular wages is defined in ESA Part I, s. 1 to exclude overtime pay. Overtime pay as per Part VIII, s. 22(1) is not just the extra premium of .5 times the regular rate for each hour over the prescribed overtime threshold, but is the entire 1.5 times the regular rate for each hour worked over the prescribed overtime threshold. This means that all payment for hours worked over the prescribed threshold is excluded from the calculation.

Employee:

• Earns $20 an hour;
• Has agreed in writing to work 50 hours per week (10 hours/day, 5 days/week), and works 50 hours per week in each of the four work weeks prior to the work week in which the public holiday falls;
• Receives vacation pay on each pay cheque as it accrues;
• Was not on vacation or otherwise absent from work during the four work weeks prior to the work week in which the public holiday fell.

To calculate public holiday pay:

1. Regular wages earned by the employee in the four work weeks before the work week in which the public holiday fell: $3520 ($20/hour x 44 hours/week x 4 weeks) – note that all pay for hours worked in excess of 44 are excluded;

   plus

2. Vacation pay payable to the employee with respect to the four work weeks before the work week in which the public holiday fell: assuming the employee has fewer than five years of employment - $169.60 [($3520 of regular wages + $720 of overtime pay) x 4%]
   • Note: vacation pay is payable on ALL wages (except for vacation pay), including overtime pay, pursuant to ESA Part XI, s. 35.2.
   • = $3869.60
3. $3869.60 divided by 20 = $184.48 public holiday pay

Note that although this employee’s average daily wage (not including vacation pay) is $212 [(44 hours x $20) + (6 hours x $30) divided by 5], the employee is entitled only to $184.48 public holiday pay because overtime pay is excluded from the public holiday pay calculation.

Example 7 – Employee works overtime with overtime averaging agreement

7A – Only hours that attract overtime pay are excluded from the public holiday pay calculation

If an employee is subject to an averaging agreement or arrangement, the employee may exceed the weekly overtime threshold in a particular week, but might not receive overtime pay for those hours because of the averaging arrangement. In this case, wages for all of the hours worked will be included in the calculation.

Employee:

• Earns $20 an hour;
• Has agreed in writing to average the hours worked over four weeks for the purpose of determining the employee’s overtime pay entitlement pursuant to ESA Part VIII, s. 22(2);
• In the four work weeks prior to the work week in which the public holiday occurred, the employee worked:
  • Week 1: 35 hours
  • Week 2: 48 hours
  • Week 3: 35 hours
  • Week 4: 48 hours
  • Total hours worked: 166
  • Average hours worked: 41.5 per work week
  • Average overtime hours worked: 0
  • Overtime pay: $0
• Receives vacation pay when vacation is taken;
• Was not on vacation or otherwise absent from work during the four work weeks prior to the week in which the public holiday fell.

To calculate public holiday pay:

1. Regular wages earned by the employee in the four work weeks before the work week in which the public holiday occurred: $3320 ($20/hour x 166 hours)
   • Note: pay for hours worked in excess of 44 per week in weeks 2 and 4 are included because they were not compensated as overtime hours due to the averaging agreement.

   plus

2. Vacation pay payable to the employee in the four work weeks before the work week in which the public holiday occurred: $0
   • = $3320
3. $3320 divided by 20 = $166 public holiday pay

7B – Despite an averaging agreement, an employee may still earn overtime pay

As in example 7A, those overtime wages will be excluded from the calculation of public holiday pay.

Employee:

• Earns $20 an hour;
• Has agreed in writing to average the hours worked over four weeks for the purpose of determining the employee’s overtime pay entitlement;
• In the four work weeks prior to the work week in which the public holiday occurred, the employee worked:
  • Week 1: 60 hours
  • Week 2: 30 hours
  • Week 3: 60 hours
  • Week 4: 30 hours
  • Total hours worked: 180
  • Average hours worked: 45 per work week
  • Average non-overtime hours: 44 per work week
  • Average overtime hours worked: one per work week
  • Overtime pay: ($20/hour x 1.5) x (one overtime hour/week x 4 weeks) = $120
• Receives vacation pay when vacation is taken;
• Was not on vacation or otherwise absent from work during the four work weeks prior to the work week in which the public holiday fell.

To calculate public holiday pay:

1. Regular wages earned by the employee in the four work weeks before the work week in which the public holiday occurred: $3520 ($20/hour x 44 hours per week x 4 work weeks)

   plus

2. Vacation pay payable to the employee in the four work weeks before the work week in which the public holiday occurred: $0
   • = $3520
3. $3520 divided by 20 = $176 public holiday pay

Example 8 – Public holiday pay calculation during Christmas holiday season

Public holiday pay is excluded from the definition of regular wages. This becomes relevant for the New Year’s Day and, depending on the work week of a workplace, possibly Boxing Day, calculation of public holiday pay. It can have the effect of lowering the amount of public holiday pay owing to an employee on New Year’s Day and possibly Boxing Day.

Employee:

• Works eight hours a day, Monday to Friday, earning $200/day;
• Receives vacation pay when the vacation is taken;
• Was not on vacation during the four work weeks prior to the public holiday;
• During those four work weeks, the only workdays the employee was not at work was on Christmas Day and December 26. For these two days, the employee was paid public holiday pay;
• The work week is Monday to Sunday;
• Christmas falls on a Thursday.

To calculate public holiday pay for Christmas:

The four work weeks over which the calculation is performed is from Monday November 24 to Sunday December 21.

1. Regular wages earned by the employee in the four work weeks before the work week in which the public holiday occurred: $4000 ($200 times 20 days worked).

   plus

2. Vacation pay payable to the employee with respect to the four work weeks before the work week in which the public holiday occurred: $0
   • = $4000
3. $4000 divided by 20 = $200 public holiday pay

To calculate public holiday pay for December 26 (Boxing Day):

The four work weeks over which the calculation is performed is from Monday November 24 to Sunday December 21.

1. Regular wages earned by the employee in the four work weeks before the work week in which the public holiday occurred: $4000 ($200 times 20 days worked).

   plus

2. Vacation pay payable to the employee with respect to the four work weeks before the work week in which the public holiday occurred: $0
   • = $4000
3. $4000 divided by 20 = $200 public holiday pay

To calculate public holiday pay for New Year’s Day:

The four work weeks over which the calculation is performed is from Monday December 1 to Sunday December 28.

1. Regular wages earned by the employee in the four work weeks before the work week in which the public holiday occurred: $3600 ($200 times 18 days worked).
   • Note: The $200 of public holiday pay the employee earned on each of Christmas Day and December 26 is excluded from the calculation, because public holiday pay is excluded from the definition of regular wages.

   plus

2. Vacation pay payable to the employee with respect to the four work weeks before the work week in which the public holiday occurred: $0
   • = $3600
3. $3600 divided by 20 = $180 public holiday pay

Example 9 – Verifying if correct public holiday pay paid to salaried employee with varying daily hours

Employee:

• Works Monday, Wednesday, Friday, Saturday and Sunday for 5.5 hours each day and Tuesday for 4 hours, earns a salary of $800/week;
• Receives vacation pay when vacation is taken;
• Received a substitute day off for a public holiday, which was taken on a Tuesday;
• Was not on vacation during the four weeks prior to the work week in which the substitute holiday is taken;
• Was not otherwise absent from work during those four work weeks.

To determine whether the proper amount of public holiday pay has been paid:

1. Determine the employee’s hourly rate $800.00 divided by 31.5 (hours worked in a week) = $25.40 an hour
2. Using the hourly rate and the number of hours that would have been worked on the day the employee took off, determine how much of the salary paid is attributable to the day off ;
   • By virtue of the fact that the employee did not work on the Tuesday because it was taken as a substitute holiday and yet received his full salary of $800 for that week, he in effect received $25.40 x 4 hours = $101.60 for the substitute holiday.
3. Determine the public holiday entitlement by applying the method set out in s. 24(1)(a): total of the regular wages earned during plus the vacation pay payable with respect to the four work weeks before the holiday (i.e., substitute day in this example) divided by 20];
   • ($800/week times 4 weeks) divided by 20 = $160.00
4. Compare the amounts obtained in step 2 and step 3

As the amount owing to the employee under the public holiday calculation is $160.00 and the employee only received $101.60 for the substitute holiday, the employer owes the employee $58.40.

Note that if the employee had taken a different workday off other than a Tuesday, the result would differ because of the different number of hours the employee works on their other workdays.

If a contract of employment provides that an employee is to be given public holiday pay in addition to their salary, then the employee gets the public holiday pay plus the regular salary. But, absent such a provision, it is Program policy that the salary is understood to include public holiday pay amounts when the employee gets the day off. In that situation, the four steps outlined above would apply.

For employees who work five days a week and work the same number of hours each day, the result of the above-described four-step calculation will be that the employer will be in compliance so long as the employee is paid their usual salary and given the day off.

Calculating public holiday pay for assignment employees of temporary help agencies

Public holiday pay is calculated as the total amount of regular wages earned plus the vacation pay payable in the four work weeks preceding the work week in which the public holiday falls, divided by 20. All regular wages earned and vacation pay payable to an assignment employee in the four-week period is included for the purposes of this calculation, regardless of the number of assignments the employee was on within that four-week period.

Changes to the public holiday pay formula in 2018

There were several significant changes to the public holiday pay provisions in 2018. The changes are detailed in the table below. The interpretation of the provisions that were previously in force are set out under the table. Since employees may still have claims relating to provisions that are no longer in force, the discussion of the former provisions remains as part of this publication. The text appears in red to highlight that these provisions are no longer in force.

“Pro-rating” formula: total amount of regular wages earned and vacation pay payable in the four work weeks before the work week in which the public holiday occurred, divided by 20.

• The text that precedes this chart – in black front – provides an interpretation of the “pro-rating” formula.

“Averaging” formula: 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. Additional provisions that were in effect January 1, 2018 to June 30, 2018 (ss. 24(1.1) and 24(1.2)) established rules for applying the averaging formula when an employee was on a personal emergency leave or vacation during the relevant pay period or was not employed during the relevant pay period.

• The text that appears below this chart – in red font - provides an interpretation of the now repealed “averaging” formula.

Averaging formula: Public holiday pay calculations for public holidays that occurred, and substitute holidays that were taken, between January 1, 2018 and June 30, 2018

The amount of public holiday pay owing for public holidays from January 1, 2018 to June 30, 2018, and for substitute holidays that were taken during that time period (regardless of when the public holiday for which the substitute holiday was earned occurred) was determined by now-repealed sections 24(1)(a), 24(1.1) and 24(1.2), as follows:

The calculation, which provides for an average day`s pay in respect of the public holiday, is made by taking the regular wages earned in the pay period immediately preceding the public holiday and dividing that amount by the number of days actually worked within that pay period. However, see ss. 24(1.1) and (1.2) below which set out those situations in which a pay period other than the pay period immediately preceding the public holiday is used to calculate public holiday pay.

Shift spans two calendar days

For the purposes of counting the number of days the employee worked in the pay period, an employee is considered to have worked only one day in situations where their shift spans two calendar days. For example, one day is counted as having been worked where an employee works from 11:00 p.m. on one day to 7:00 a.m. on the next day.

Same, leave or vacation – s. 24(1.1)

Section 24(1.1) provides that if an employee is on a leave under ESA Part XIV, s. 50 (which was personal emergency leave at the time s. 24(1.1) was in force), or on vacation, or on a combination of ESA Part XIV, s. 50 personal emergency leave and vacation for the entire pay period immediately preceding the public holiday, the pay period to be used in the calculation in s. 24(1)(a) is  the pay period preceding the start of that leave or vacation. Note that the employee must be on ESA Part XIV, s. 50 personal emergency leave or on vacation (or both) for the entire pay period for s. 24(1.1) to apply. If the employee is on personal emergency leave or on vacation for only part of the pay period immediately preceding the public holiday, that is the pay period that will be used in the calculation of public holiday pay.

Note that s. 24(1.1) applies only if the leave the employee takes is a leave of absence under the personal emergency leave provisions in ESA Part XIV, s. 50 for the entire pay period immediately preceding the public holiday. If the leave of absence that the employee is on in the pay period immediately preceding the public holiday is any other type of leave of absence, s. 24(1.1) does not apply. For example, if  an employee was on a pregnancy or parental leave for all (or part) of the pay period immediately preceding a public holiday, her public holiday pay would be calculated on the basis of days worked and pay earned in the pay period immediately preceding the holiday. This could result in the employee receiving $0 as public holiday pay.

Start of that leave or vacation

The question may arise as to what is considered the start of a ESA Part XIV, s. 50 personal emergency leave or vacation taken within the pay period preceding a public holiday if an employee has also taken leave or vacation days in the pay period prior to the pay period immediately preceding the public holiday.

It is the Program’s policy that if an employee takes days of personal emergency leave or vacation (or both) in that prior pay period that are consecutive with the personal emergency leave or vacation days taken in the pay period immediately preceding the public holiday, all of those days are together considered a single period of leave or vacation. For the purposes of s. 24(1.1) then, the leave or vacation starts on the first day of that single continuous period of personal emergency leave and/or vacation.

Example 1:  January 1, 2018 to June 30, 2018

• Employee regularly works Monday through Friday and has a weekly pay period
• Public holiday falls May 21
• Weekly pay period immediately preceding the public holiday is May 13 to May 19: 5 days of s. 50 leave taken Monday, May 14 to Friday, May 18
• Weekly pay period May 6 to May 12: 2 days of s. 50 leave taken Thursday, May 10 and Friday, May 11

Because the employee works Monday through Friday in this example, the two ESA Part XIV, s. 50 personal emergency leave days taken May 10 and May 11 were taken consecutively with the five s. 50 leave days taken May 14 to May 18 and the personal emergency leave then started on May 10.

In accordance with s. 24(1.1), the public holiday pay for May 21 is calculated using the pay period preceding the start of the s. 50 personal emergency leave, that is April 29 to May 5.

It is also Program policy that in determining whether days are consecutive, you only look to the days the employee is regularly scheduled to work. For example, if an employee only regularly works one day a week and takes two vacation days (i.e., the one day in each week that they would have regularly worked), the two vacation days are considered consecutive.

Example 2:  January 1, 2018 to June 30, 2018

• Employee regularly works Monday through Friday and has a weekly pay period
• Public holiday falls May 21
• Weekly pay period immediately preceding the public holiday is May 13 to May 19: 3 days of s. 50 leave taken Monday, May 14 to Wednesday, May 16 and 2 days of vacation taken Thursday, May 17 and Friday, May 18
• Weekly pay period May 6 to May 12: 2 days of s. 50 leave taken Thursday, May 10 and Friday, May 11

Because the employee works Monday through Friday in this example, the two s. 50 personal emergency leave days taken May 10 and May 11 were taken consecutively with the personal emergency leave days and vacation days taken May 14 to May 18 and the leave then started on May 10.

In accordance with s. 24(1.1), the public holiday pay for May 21 is calculated using the pay period preceding the start of the leave, that is April 29 to May 5.

Example 3: January 1, 2018 to June 30, 2018

However, if an employee is on s. 50 personal emergency leave or vacation (or both) in that prior pay period that is not consecutive with the s. 50 personal emergency leave or vacation days taken in the pay period immediately preceding the public holiday, the leave or vacation starts in the pay period immediately preceding the public holiday. Therefore, pursuant to s. 24(1.1), public holiday pay would be calculated using the pay period prior to the pay period immediately preceding the public holiday as shown in the following example:

• Employee regularly works Monday through Friday and has a biweekly pay period
• Public holiday falls May 21
• Biweekly pay period May 6 to May 19: 10 days of vacation taken Monday, May 7 to Friday, May 18
• Biweekly pay period April 22 to May 5: 2 days of vacation taken Thursday, April 26 and Friday, April 27.

Because the vacation days taken April 26 and April 27 were not taken consecutively with the vacation days taken May 7 to May 19, the vacation started on May 7.

In accordance with s. 24(1.1), the public holiday pay for May 21 is calculated using the pay period preceding the start of the vacation, that is April 22 to May 5.

Same, no pay period before public holiday, s. 24(1.2)

Under s. 24(1.2), employees who commence employment in the pay period that includes a public holiday are entitled to public holiday pay for that holiday based on the regular wages earned in the pay period that includes the public holiday divided by the number of days the employee worked in that period.

A question may arise regarding the calculation of the public holiday pay entitlement under s. 24(1.2) with respect to an employee who commences employment during the pay period in which the public holiday falls and who does not have a substitute day scheduled. In other words, the employee works on the holiday and is entitled to public holiday pay for the holiday and premium pay for the hours worked on the holiday.

For example, if an employee was hired during the pay period in which Family Day falls and agreed in accordance with ESA Part X, s. 27(2)(b) to work on Family Day, what is the public holiday pay entitlement for that day? The employee’s wages earned in the pay period would not include the premium pay for any hours worked or any public holiday pay paid in respect of Family Day as such wages do not fall within the definition of regular wages. As noted in the discussion of s. 24(1)(a), all days worked (including Family Day in this example) in the pay period would be included in the count for the number of days worked when calculating the public holiday pay for Family Day.

Examples of calculating public holiday pay – for public holidays that occurred January 1, 2018 to June 30, 2018 and for substitute holidays that were taken January 1, 2018 to June 30, 2018 regardless of when the public holiday for which the substitute holiday was earned occurred

Example 1 – Employee has irregular hours

Employee:

• Has a bi-weekly pay period;
• Is paid $20.00/hour;

In the pay period before the public holiday, the employee worked:

• Week 1:
  • 7 hours on Monday
  • 6 hours on Wednesday
  • 5 hours on Thursday
  • 10 hours on Friday
• Week 2:
  • 5 hours on Tuesday
  • 4 hours on Wednesday
  • 6 hours on Thursday
  • 7 hours on Friday
  • 8 hours on Saturday
• Total hours worked: 58
• Total days worked: 9

The employee was not absent on s. 50 personal emergency leave or vacation for the entire pay period immediately preceding the public holiday. Therefore, public holiday pay to be calculated using the pay period immediately preceding the public holiday.

To calculate public holiday pay:

1. Regular wages earned by the employee in the pay period before the public holiday:

   $1160 ($20.00/hour times 58 hours worked)

2. Divided by 9 (the number of days the employee worked in the pay period before the public holiday)
3. $1160 divided by 9 = $128.89 public holiday pay.

Example 2 – Employee is absent from work in pay period preceding public holiday

Employee:

• Works eight hours a day, five days a week, earning $200/day;
• Has a bi-weekly pay period;
• Employee worked 7 days

Per the employee’s contract, took three days off as floater days in the pay period immediately preceding the public holiday. Therefore, public holiday pay to be calculated using the pay period immediately preceding the public holiday.

To calculate public holiday pay:

1. Regular wages earned by the employee in the pay period preceding the public holiday= $1400 ($200 per day x 7 days worked).
2. Divided by 7 (the number of days the employee worked in the pay period preceding the public holiday)
3. $1400 divided by 7 = $200 public holiday pay

Example 3 – Employee works overtime

Only regular wages are included in the calculation of public holiday pay. Regular wages is defined in ESA Part I, s. 1 to exclude overtime pay. Overtime pay as per Part VIII, s. 22(1) is not just the extra premium of .5 times the regular rate for each hour over the prescribed overtime threshold, but is the entire 1.5 times the regular rate for each hour worked over the prescribed overtime threshold. This means that all payment for hours worked over the prescribed threshold is excluded from the calculation.

Employee:

• Earns $20 an hour;
• Has a bi-weekly pay period;
• Agreed in writing to work 50 hours per week (10 hours/day, 5 days/week), and works 50 hours per week in each of the weeks in the pay period immediately preceding the public holiday;
• Was not on vacation, s. 50 personal emergency leave or otherwise absent from work during the pay period before the public holiday.

To calculate public holiday pay:

1. Regular wages earned by the employee in the pay period before the public holiday: $1760 ($20/hour x 44 hours/week x 2 weeks)
   • Note that all pay for hours worked in excess of 44 are excluded;
2. Divided by 10 (the number of days worked in the pay period before the public holiday);
   • Note that all days on which the employee worked are included, even if only overtime was worked on a particular day;
3. $1760 divided by 10 = $176.00 public holiday pay

Note that although this employee’s average daily wage when you include overtime is $212 [(44 hours x $20) + (6 hours x $30) divided by 5], they are entitled only to $176.00 public holiday pay because overtime pay is excluded from the public holiday pay calculation.

Example 4 – Employee is on personal emergency leave for part of pay period

Employee:

• Works eight hours a day, five days a week, earning $200/day;
• Has a bi-weekly pay period;
• Worked seven days and took three days of s. 50 personal emergency leave in the pay period immediately preceding the public holiday.

Although the employee was on s. 50 personal emergency leave during the pay period immediately preceding the public holiday the employee was not on personal emergency leave for the entire pay period. Therefore, public holiday pay is to be calculated using the pay period immediately preceding the public holiday.

To calculate public holiday pay:

1. Regular wages earned by the employee in the pay period immediately preceding the public holiday = $1400 ($200 per day x 7 days worked).
2. Divided by 7 (the number of days the employee worked in the pay period immediately preceding the public holiday)
3. $1400 divided by 7 = $200 public holiday pay

Note that even if the employee had been paid for one or more of the personal emergency leave days pursuant to subsection 50(5), the amount paid would not be included in the public holiday pay calculation, since personal emergency leave pay is excluded from the definition of regular wages.

Example 5 – Employee is on vacation for entire pay period

Employee:

• Works eight hours a day, five days a week, earning $200/day;
• Has a bi-weekly pay period;
• Was on a vacation for all 10 working days in the pay period immediately preceding the public holiday;
  • Note s. 24(1.1) applies because the employee was on vacation for the entire pay period immediately preceding the public holiday. Public holiday pay to be calculated using the pay period preceding the start of the vacation.
• Worked all 10 days in pay period preceding the start of the vacation.

To calculate public holiday pay:

1. Regular wages earned by the employee in the pay period preceding the start of the vacation = $2000 ($200 per day x 10 days worked).
2. Divided by 10 (the number of days the employee worked in the pay period preceding the start of the vacation)
3. $2000 divided by 10 = $200 public holiday pay

Example 6 – Employee not employed during pay period

Employee:

• Commenced employment on Sunday, December 30
• Has a weekly pay period, from Sunday to Saturday;
• Is paid $20.00/hour;
• In the pay period that includes the public holiday (New Year’s Day), the employee worked:
  • 6 hours on Sunday
  • 6 hours on Thursday
  • 8 hours on Friday
  • 8 hours on Saturday
  • Total hours worked: 28
  • Total days worked: 4

To calculate public holiday pay:

Because the employee was not employed in the pay period immediately preceding the public holiday, public holiday pay is calculated in accordance with s. 24.(1.2):

1. Regular wages earned by the employee in the pay period that includes the public holiday: $560 ($20/hour times 28 hours worked)
2. Divided by 4 (the number of days the employee worked in the pay period that includes the public holiday)
3. $560 divided by 4 = $140 public holiday pay

Note that if the employee had commenced employment on or after January 2, they would not be entitled to public holiday pay for January 1 because they were not yet in an employment relationship with the employer on the holiday.

Example 7 – Employee works overtime with an overtime averaging agreement

7A – Employee does not earn any overtime pay

The employee is subject to an averaging agreement and exceeds the weekly overtime threshold in a particular week, but does not receive overtime pay for those hours because of the averaging agreement. In this case, wages for all of the hours worked will be included in the calculation of public holiday pay.

Employee:

• Earns $20 an hour and works 5 days per week;
• Has a bi-weekly pay period;
• Has agreed in writing to average his/her hours over two weeks for the purpose of determining the employee’s overtime pay entitlement pursuant to ESA Part VIII, s. 22(2);
• In the pay period prior to the public holiday, the employee worked:
  • Week 1: 35 hours
  • Week 2: 48 hours
  • Total hours worked: 83
  • Average hours worked: 41.5 per work week
  • Average overtime hours worked: 0
  • Overtime pay: $0
• Was not on vacation, s. 50 personal emergency leave or otherwise absent from work during the pay period before the public holiday.

To calculate public holiday pay:

1. Regular wages earned by the employee in the pay period before the public holiday: $1660 ($20/hour x 83 hours)
   • Note: pay for hours worked in excess of 44 per week in week 2 is included because the hours were not compensated as overtime hours due to the averaging agreement.
2. Divided by 10 (the number of days worked in the pay period before the public holiday);
3. $1660 divided by 10 = $166 public holiday pay

7B – Employee earns overtime pay

The employee is subject to an averaging agreement and exceeds the weekly overtime threshold in a particular week, and receives overtime pay for some of those hours because of the averaging agreement. In this case, those overtime wages will be excluded from the calculation of public holiday pay.

Employee:

• Earns $20 an hour and works 10 days per week;
• Has a bi-weekly pay period;
• Has agreed in writing to average their hours over two weeks for the purpose of determining the employee’s overtime pay entitlement;
• In the pay period immediately preceding the public holiday, the employee worked:
  • Week 1: 60 hours
  • Week 2: 30 hours
  • Total hours worked: 90
  • Average hours worked: 45 per work week
  • Average non-overtime hours: 44 per work week
  • Average overtime hours worked: one per work week
  • Overtime pay: ($20/hour x 1.5) x (one overtime hour/week x 2 weeks) = $60
• Was not on vacation, s. 50 personal emergency leave or otherwise absent from work during the pay period before the public holiday.

To calculate public holiday pay:

1. Regular wages earned by the employee in the pay period immediately preceding the public holiday: $1760 ($20/hour x 44 hours per week x 2 work weeks)
2. Divided by 10 (the number of days worked in the pay period immediately preceding the public holiday);
3. $1760 divided by 10 = $176 public holiday pay

Example 8 – Public holiday pay calculation during Christmas holiday season

Public holiday pay and premium pay are excluded from the definition of regular wages. This becomes relevant when a public holiday falls within the pay period immediately preceding a public holiday. For example, where Christmas Day and Boxing Day fall within one pay period and New Year’s Day falls in the next pay period.

Employee:

• Works eight hours a day, Monday to Friday, earning $200/day;
• Has a weekly pay period.
• Is entitled to both Christmas Day and Boxing Day as days off with public holiday pay in the pay period immediately preceding New Year’s Day, so only works 3 days.

To calculate public holiday pay for New Year’s Day:

1. Regular wages earned by the employee in the pay period immediately preceding New Year’s Day: $600 ($200 X 3 days worked)
2. Divided by 3 (the number of days worked in the pay period before the public holiday);
3. $600 divided by 3 = $200 public holiday pay for New Year’s Day

Example 9 – Verifying public holiday pay for salaried employee whose daily hours of work vary

Employee:

• Works Monday Tuesday, Wednesday, Friday, Saturday and Sunday. Employee works 5.5 hours each day except for Mondays when the employee works for 4 hours.
• Employee’s salary is $600/week
• Has a weekly pay period
• Public holiday taken as a day off on Monday.
• Assume employee worked the entire pay period immediately preceding the week in which the public holiday fell

To determine whether the proper amount of public holiday pay has been paid:

1. Determine the employee’s hourly rate $600.00 divided by 31.5 (hours worked in a week) = $19.05 an hour;
2. Using the hourly rate and the number of hours that would have been worked on the public holiday off, determine how much of the $600 salary paid is attributable to the public holiday off;
   • Because the employee did not work on the Monday (the public holiday) but received the full $600 salary for that week, the employee in effect received $19.05 x 4 hours = $76.20 for the public holiday.
3. Determine the public holiday entitlement by applying the method set out in s. 24(1)(a): total of the regular wages earned in the pay period before the holiday ($600) divided by 6 (i.e. the number of days worked in that pay period);
   • $600 divided by 6 = $100
4. Compare the amounts obtained in step 2 and step 3

As the public holiday calculation netted the employee $100 and the employee only received $76.20 for the public holiday, a balance of $23.80 in public holiday pay is owed to the employee.

Note that if the public holiday fell on a workday other than Monday, the result would differ because of the different number of hours the employee works on their other workdays.

If a contract of employment provides that an employee is to be given public holiday pay in addition to their salary, then the employee gets the public holiday pay plus the regular salary. But, absent such a provision, it is Program policy that the salary is understood to include public holiday pay amounts when the employee gets the day off. In that situation, the four steps outlined above would apply.

For employees who work five days a week and work the same number of hours each day, the result of the above-described four-step calculation will be that the employer will be in compliance so long as the employee is paid their usual salary and given the day off.

Premium Pay – s. 24(2)

This section sets out the rate that is to be used to calculate any premium pay an employee may be entitled to pursuant to other sections in Part X. It provides that the amount of premium pay shall be at least one and one half times an employee’s regular rate.

ESA Part I, s. 1 defines regular rate as follows:

As of the time of writing, there is no regulation made under paragraph 10 of ESA Part XXVII, s. 141(1) that provides a different definition of regular rate.

See ESA Part I, s. 1 for a discussion of the term regular rate, particularly as it applies to employees whose compensation consists of an hourly rate plus some other form of compensation.

Section 25 - Two kinds of work

Two kinds of work - ss. 25(1), (2)

These provisions were introduced in the Employment Standards Act, 2000. They codify policy that applied under the former Employment Standards Act.

These provisions state what happens when, during a work week in which a public holiday falls, an employee performs some work for an employer that is covered by Part X, and some work that is exempted from coverage of Part X by O Reg 285/01, s. 2 or s. 9.

In this situation, Part X will apply to that employee for that particular public holiday if 50 per cent or more of the employee’s hours during that work week were spent performing work that is not exempt.

It is only the work performed during the work week in which the public holiday falls that is reviewed when applying s. 25. For example, assume Work A is exempt from Part X, while Work B is covered by Part X. During each of the three work weeks prior to the public holiday, an employee spends 60 per cent of her time performing Work A (exempt work) and 40 per cent performing Work B (non-exempt work). However, during the work week the public holiday occurs, she spends 45 per cent of her time performing Work A (exempt work) and 55 per cent of her time performing Work B (non-exempt work). Because she spent 50 per cent or more of her time performing non-exempt work during the work week in which the public holiday fell, she will be entitled to the Public Holiday standard with respect to that particular public holiday. (The same review must be performed for each public holiday.)

Section 26 - Public holiday ordinarily a working day

Public holiday ordinarily a working day - s. 26(1)

This provision sets out an employee’s entitlement when a public holiday falls on a day that is ordinarily the employee’s working day and that is not during the employee’s vacation. See ESA Part X, s. 29 for the entitlement if a public holiday falls on a day that is not ordinarily an employee’s working day, or is during an employee’s vacation.

It is not always readily apparent which days are ordinarily working days for a given employee. Whether or not a holiday falls on a day that is ordinarily a working day for an employee will determine what the employee is entitled to for the holiday, and, in certain industries, whether or not the employer can require the employee to work on the holiday. For example, the question has arisen in the restaurant industry as to how to determine which days are ordinarily working days for part-time employees who have irregular shifts. It is Program policy that to make this determination, one looks at the days that the employee tells the employer that they are available to work and the past scheduling practice. For example, an employee is hired on the basis that they are available to work Mondays through Fridays, and is actually scheduled to work on each of those days (although not on any regular basis - e.g., Monday and Tuesday one week, Tuesday and Friday the next week, Wednesday and Thursday the next week, etc.). In this case, the Program would consider Mondays through Fridays to be days that would ordinarily be working days for that employee. However, if that same employee is only ever scheduled to work Tuesdays and Thursdays, the Program would consider only Tuesdays and Thursdays to be days that would ordinarily be working days for that employee, even though they said they were available all weekdays.

For employees who are on lay-off, a leave under ESA Part XIV, or any other leave of absence when a public holiday occurs, their pre-leave or pre-lay-off schedule determines whether the public holiday falls on a day that would or would not ordinarily be a working day for an employee, and thus whether s. 26 or s. 29 will apply to that particular public holiday.

For example, if an employee on parental leave worked Mondays to Fridays before the leave, Mondays to Fridays are days that are ordinarily working days for that employee, and Saturdays and Sundays are days that would not ordinarily be working days for that employee. Consequently, s. 26 will apply to any public holiday that falls on a weekday during that employee’s leave, and s. 29 will apply to any public holiday that falls on a weekend during that employee’s leave. In either case, the employee is entitled to public holiday pay for the holiday - see ESA Part X, s. 29(2.1). But because public holiday pay is based on regular wages earned and vacation pay payable in the four work weeks prior to the public holiday, an employee who was on a leave or lay-off for some or all of the four weeks prior to the public holiday, the quantum of public holiday pay to which they will be entitled will be less than the equivalent of a regular day’s pay [and in the case of an employee who was on  a leave or lay-off for the entire four weeks, will be zero].

Some employees may have had a varying, irregular schedule before their leave or lay-off, such that it cannot be determined whether or not the employee would have been scheduled to work on the day the public holiday falls. In this case, because there are no days that "would ordinarily be a working day for" that employee, s. 29 will apply to any public holiday that occurs during the leave or lay-off.

See ESA Part XVIII.1, s. 74.10 for a discussion of the application of Part X to assignment employees of temporary help agencies, particularly the Program’s policy that a public holiday falls on a day that is ordinarily a working day for an assignment employee only if the employee is on assignment and the holiday falls on a day that they would be working pursuant to the assignment (assuming there had been no holiday). In that case only, ESA Part X, ss. 26, 27 or 28 would apply to determine the employee’s public holiday entitlements.

Section 26(1) states that when a public holiday falls on a day that is ordinarily an employee’s working day and the employee is not on vacation, the employee is to be given the public holiday off and paid public holiday pay. See ESA Part X, s. 24 for a discussion of public holiday pay.

The entitlement in s. 26(1) is subject to:

• Section 26(2) which provides that employees lose their s. 26(1) entitlement if they fail without reasonable cause to work their entire regularly scheduled day of work before or after the public holiday;
• ESA Part X, s. 27 which allows employees to agree in writing to work on the public holiday; and
• ESA Part X, s. 28 which permits employers to require employees in certain operations to work on a public holiday that falls on a day that is ordinarily an employee’s working day and the employee is not on vacation.

Exception – s. 26(2)

This section provides that employees are not entitled to the s. 26(1) entitlement of a public holiday off with public holiday pay if they fail, without reasonable cause, to work their entire regularly scheduled day of work before or after the holiday.

This section is intended to discourage employees from unilaterally taking an extra day off around the public holiday by failing to show up on the day they are expected to work before or after the holiday, or by showing up to work later or leaving earlier than expected before or after the holiday.

Regularly scheduled

Reference to "regularly scheduled" relates to the schedule of the particular employee, not to the business hours of the employer. For example, an employee works Monday to Friday in a business that is open seven days a week. A holiday falls on a Monday. The employee would not be disqualified under this section because they did not work on Sunday. So long as they worked their entire scheduled shift on the Friday before the public holiday and the Tuesday after the public holiday, they will be considered to have worked the last regularly scheduled day before and the first regularly scheduled day after the public holiday.

If the employee in the above example had originally been scheduled to work on the Friday before the public holiday, but exchanged this shift with the employer’s approval, the effect of this change would be to alter their regularly scheduled day of work. So long as the employee worked the entire scheduled days on the Thursday before the holiday and the Tuesday after the holiday, they will be considered to have worked the last regularly scheduled day before and the first regularly scheduled day after the public holiday - see 472323 Ontario Limited c.o.b.a. the Weed Man v Clark (October 28, 1985) ESC 1971 (Kerry) a decision under the former Employment Standards Act.

In 398827 Ontario Limited c.o.b. Palangio Vending & Food Services v Guimond et al (May 31, 1982), ESC 1232 (Black), a decision under the former Employment Standards Act, the employer terminated the employees at a school cafeteria before Christmas, fully intending to rehire them after the New Year, so that they could claim Employment Insurance benefits. The referee held that the employees had worked their scheduled days before and after the holiday:

If the employer’s argument that the claimants were not employees on the holidays in question because they had been terminated was upheld, then surely nothing would prevent an unscrupulous employer from terminating an employee the day before each public holiday only to rehire the day after such holiday in order to avoid compliance with the legislation.

An employee will not be considered to have worked all of their last regularly scheduled day of work before the public holiday and all of their first regularly scheduled day of work after the public holiday if they did not work the entire scheduled shift on both of those days. However, if the employer allows the employee to leave early (or begin late), the employee would not be disqualified, since what constituted the full regularly scheduled day of work was adjusted by mutual consent. Note that agreements to adjust the schedule are not required to be in writing, as they are not agreements provided for in the ESA 2000.

What follows are some examples of situations in which an employee will not be considered to have failed to work their last regularly scheduled day of work before or first regularly scheduled day of work after the public holiday.

Scheduled leaves of absence

Where the last regularly scheduled work day before a public holiday or the first regularly scheduled day of work after a public holiday falls on a day that, although it would ordinarily have been a working day for the employee, is a day on which the employee is on a scheduled leave of absence, they will not be considered to have failed to work the "last before" or "first after"; since the employee was on a scheduled leave, work could not have been scheduled for them on that day. Leaves that are arranged in advance would fall into this category; examples would include sabbatical leaves and, if notice is given in advance of the start date, leaves under ESA Part XIV.

Where advance notice is not given, as is often the case with some ESA Part XIV leaves, the leave would obviously not be considered to have been arranged in advance; however, an employee who misses the last before or first after because of taking such leave would not lose the public holiday entitlement because of the reasonable cause exception to the "last before and first after" requirement. See the discussion in under Reasonable Cause below.

Vacations

Where the last regularly scheduled work day before a public holiday or the first regularly scheduled day of work after a public holiday falls on a day that, while it would ordinarily have been a working day for the employee, is a day on which the employee is on vacation, they will not be considered to have failed to work the last before or first after; since the employee was on vacation, work could not have been scheduled for them on that day.

Lay-offs

Where the last regularly scheduled work day before a public holiday or the first regularly scheduled day of work after a public holiday falls on a day that, while it would ordinarily have been a working day for the employee, is a day on which the employee is on lay-off, they will not be considered to have failed to work the last before or first after; since the employee was on lay-off, work would not have been scheduled for them on that day.

Termination or resignation of employment

A person who resigns or whose employment is terminated immediately after the public holiday (i.e., before the commencement of what would have been their first regularly scheduled day of work after the holiday) is not considered to have failed to work the first regularly scheduled day of work after the public holiday. Since the individual was no longer employed on that day, work could not have been scheduled for them on that day. However, an employment relationship must have still existed between the parties on the public holiday itself. For example, if the employment of an employee who regularly works Monday through Friday each week is terminated at the end of their shift on the Friday preceding the public holiday (which falls on the following Monday), they would have no public holiday entitlement for the Monday. If however, the employment was terminated when the employee arrived at work on the Tuesday morning following the holiday, the entitlement would be maintained because there was an employment relationship on the day of the public holiday.

Disciplinary suspension

An employee who has been suspended by the employer on a day that would otherwise have been the last regularly scheduled day before a public holiday or the first regularly scheduled day after a public holiday is not considered to have failed to work the last before or first after. Since the employee was on suspension, work could not have been scheduled for them on that day.

Note that s. 26(2) provides that an employee will not lose their public holiday entitlement, despite not having worked all of their last regularly scheduled day of work before the holiday or the first regularly scheduled day of work after the holiday, if they had reasonable cause for having failed to do so. What constitutes reasonable cause is discussed in the next section.

Reasonable cause

Employees who do not work their entire regularly scheduled shifts before or after the public holiday will not lose their right to a paid day off if they had reasonable cause for failing to perform the work.

The onus is on the employee to show that there was reasonable cause. Usually, reasonable cause will be something beyond the control of the employee, although this is not always the case. What follows are some examples of situations where reasonable cause may or may not exist:

Transportation breakdown

An employee may claim that their failure to report may be due to the breakdown of their car, but if alternate transportation was readily available, this would not be considered to be reasonable cause. However, if the employee did take public transit and arrived late for their shift, this may be considered reasonable cause.

“Too tired”

Reasons such as "slept in" or "too tired" will generally not amount to reasonable cause. However, if the reason the employee slept in is because there was a power failure and the employee’s alarm clock did not go off as a result, that may amount to reasonable cause.

Part XIV leave

As was discussed above, an employee who gives advance notice that they are taking a Part XIV leave and for whom what would otherwise have been the last regularly scheduled day of work before the holiday or first regularly scheduled day of work after the holiday falls during the leave will not be considered to have failed to work the last before or first after; this is because work cannot be scheduled where the employer knows beforehand that the employee will be on leave. However, where the employee had to commence the leave without advance notice, they will not lose the public holiday entitlement despite not working the last before or first after; although work was scheduled, the employee had reasonable cause for not working.

Sick leave, family responsibility leave and bereavement leave

Sick leave, family responsibility leave and bereavement leave under ESA Part XIV, are, because of the nature of the events for which they can be taken, often not possible to be arranged in advance; therefore, an employee who had to take sick leave, family responsibility leave or bereavement leave on a day that is the last regularly scheduled day of work before or the first regularly scheduled day of work after the public holiday would arguably - if no advance notice was given - be regarded as having failed to work on the last regularly scheduled day before or the last regularly scheduled day after, as the case may be. However, it is Program policy that an employee who is away for any reason listed in s. 50(1), or in s. 50.0.1(1) or s. 50.0.2(1) with respect to any person in a category listed in s. 50.0.1(3) or s. 50.0.2.(3), will be considered to have reasonable cause. See the discussion of the sick leave, family responsibility leave and bereavement leave provisions in ESA Part XIV.

This policy applies even if the employee was not exercising a right to sick leave, family responsibility leave or bereavement leave because they already "used up" the leave days provided for under the ESA 2000. If an employee fails to work their last regularly scheduled day of work before or first regularly scheduled shift after the public holiday because of a reason listed in s. 50(1), or for a reason listed in s. 50.0.1(1) or s. 50.0.2(1) with respect to a person listed in s. 50.0.1(3) or s. 50.0.2(3), the Program will consider that employee to have reasonable cause.

On the other hand, just because an employee is away for a reason that is not listed in s. 50(1), or in the case of family responsibility leave or bereavement leave that does not relate to a person listed in s. 50.0.1(3) or s. 50.0.2(3), does not necessarily mean that the employee does not have reasonable cause. While any event that entitles an employee to take sick leave, family responsibility leave or bereavement leave will constitute reasonable cause, the opposite is not necessarily true. That is, s. 50, s. 50.0.1 and s. 50.0.2 do not provide an exhaustive list of what constitutes reasonable cause for the purposes of the public holiday provisions. Whether or not an event that does not fall within s. 50, s. 50.0.1 or s. 50.0.2 amounts to reasonable cause for the purpose of s. 26(2) will depend on the circumstances. For example, an employee may fail to work their regularly scheduled day of work before a public holiday because their neighbour had a medical emergency and needed the employee's assistance. Although this employee is not entitled to a family responsibility leave of absence because "neighbours" are not listed in s. 50.0.1(3), the employee may have reasonable cause for the purpose of s. 26(2), depending on all of the circumstances.

The same approach applies to personal emergency leave taken under the previous provisions, in force prior to January 1, 2019. Also note that s. 50(13) of the previous personal emergency leave provisions prohibited an employer from requiring that the employee provide a certificate from a qualified health practitioner: therefore, an employee could not be required to produce such a certificate to support an entitlement to public holiday pay when the employee took personal emergency leave during all or part of the time the employee was scheduled to work on a public holiday. However, an employee could be required to provide evidence reasonable in the circumstances per the previous version of s. 50 (12) and to support reasonable cause per ESA Part X, ss. 26(2), 27, 28 or 29.

Also note that s. 50(13) of the personal emergency leave provisions prohibits an employer from requiring that the employee provide a certificate from a qualified health practitioner: therefore, an employee cannot be required to produce such a certificate to support an entitlement to public holiday pay when the employee takes personal emergency leave during all or part of the time the employee was scheduled to work on a public holiday. However, an employee may be required to provide evidence reasonable in the circumstances per s. 50 (12) and to support reasonable cause per ESA Part X, ss. 26(2), 27, 28 or 29.

Lawful strike

It is Program policy that an employee represented by a trade union who is on a lawful strike on the last regularly scheduled shift before or first regularly scheduled shift after a public holiday will be considered to have reasonable cause. Employees on an unlawful strike will be considered to not have reasonable cause.

Note that an employee who is entitled to a substitute holiday pursuant to s. 27(2)(a) does not lose that entitlement if they fail without reasonable cause to work all of their last regularly scheduled day of work before or first regularly scheduled day of work after the substitute holiday. An employee does not have to "requalify" for the substitute holiday once they have already earned it.

Application of "last and first" rule for assignment employees of temporary help agencies

As discussed above, employees may lose the entitlement to public holiday pay or a substitute day off with public holiday pay if the employee fails, without reasonable cause, to work all of their last regularly scheduled working day before the holiday or all of their first regularly scheduled working day after the holiday.

The Program’s position is that an assignment employee will not be considered to have failed to work the last regularly scheduled working day before the holiday or first regularly scheduled working day after the holiday if they work on the last day they were supposed to work before the holiday and the first day they were supposed to work after the holiday in accordance with their assignment or assignments (if any). Note that if the employee does fail to work either of those days, they may still be entitled to the public holiday entitlements so long as they had reasonable cause for not working the day(s).

The following examples are intended to provide guidance in determining the public holiday entitlements of assignment employees pursuant to ESA Part X, ss. 24 through 32, ESA Part XVIII.1, ss. 74.10(1) and (2) (as applicable) as well as ESA Part XVIII.1, s. 74.11 and in accordance with Program policy with respect to those provisions, including the Program’s policy as described above:

Example 1: Employee on assignment, public holiday ordinarily a working day

An employee was on a two-week assignment working Monday through Thursday each week. Their previous assignment ended two months earlier. The current assignment began one week prior to the week Thanksgiving Day (Monday) occurs and ended the Thursday following the holiday. What are her entitlements with respect to the public holiday?

The employee was on assignment when the holiday occurred and would ordinarily have worked on the day the holiday fell (pursuant to their assignment) and so is entitled to Thanksgiving Day as a day off with public holiday pay for the day - see s. 26(1).

The employee will pass the last and first day test if they worked the Thursday prior to the holiday as well as the Tuesday following the holiday, or had reasonable cause if they failed to work either of those days as per s. 26(2).

The public holiday pay would be calculated as the regular wages earned and vacation pay payable in the four work weeks before the work week in which the public holiday occurred, divided by 20 – see ESA Part X, s. 24(1). Assume that the public holiday occurs after July 1, 2018, so that s. 24(1)(a) does not apply in this example.

Note that if the employee had taken more than one assignment from the agency in the four work weeks before the holiday, the calculation of public holiday pay would have been based on the total regular wages earned and vacation pay payable in respect of both of those assignments.

Example 2: Employee not on assignment and "not available for work" when the holiday falls

An assignment employee was hired by a temporary help agency on October 1, 2017. Their most recent assignment ended on July 15, 2018 and at the end of August 2018, they advised the agency that because of other commitments they would not be prepared to accept any new assignments until the beginning of October 2018. What are this employee’s entitlements with respect to Labour Day, (the first Monday in September)?

The assignment employee was an employee of the agency on Labour Day. Because they were not assigned to perform work for a client at that time, the holiday fell on a day that was not ordinarily a working day - see ESA Part X, s. 29(1).

Because they were not on an assignment on the day on which Labour Day fell they are on a lay-off pursuant to ESA Part XVIII.1, s. 74.10(1). ESA Part X, s. 29(2.1) applies to determine their entitlements. They are therefore entitled to public holiday pay for the day. However, as they had not earned any wages in the four work weeks before Labour Day, their public holiday pay is $0.

Example 3: Employee on assignment but holiday on a day not ordinarily a working day

An employee was on an assignment from January 15 to May 1 and was scheduled to work only Tuesdays and Thursdays of each week. What are their entitlements with respect to the public holidays that fell during this assignment?

There were two public holidays during this assignment: Family Day (Monday) and Good Friday (Friday).

Because Mondays and Fridays were not days that the employee was ordinarily scheduled to work pursuant to their assignment, their public holiday entitlements would be determined under ESA Part X, s. 29.

As they were on an assignment from January 15 to May 1 when the holidays fell they are not considered to be on a lay-off pursuant to ESA Part XVIII.1, s. 74.10(1) for the purposes of s. 29(2.1).

As a result, s. 29(1) applies and they are entitled to a substitute day off for both Family Day and Good Friday with public holiday pay calculated as if the substitute days were the public holidays. This means that the substitute holiday takes the place of the public holiday. Therefore, the formula to be used for calculating public holiday pay for the substitute holiday would be the formula that is in effect on the date of the substitute holiday.

As per s. 29(2) the substitute days must be scheduled within three months following the public holidays or within 12 months if the employee and employer agree. As per s. 29(2.1), the employer must provide the employee with a written statement that sets out the date of the day that is substituted for the public holiday.

Section 27 – Agreement to work, ordinarily a working day

Agreement to work, ordinarily a working day – s. 27(1)

This section provides an exception to the entitlement in ESA Part X, s. 26, which provides employees with the right to the public holiday off with public holiday pay if the holiday falls on a day that is ordinarily an employee’s working day and the employee is not on vacation. Section 27(1) allows such employees and their employers to agree that the employee will work on the public holiday. If an agreement is reached, the entitlements set out in s. 27(2) will apply instead of those set out in s. 26.

Any agreement that the employee will work on the public holiday must be in writing. See ESA Part 1, s. 1(3) and (3.1) for a discussion of agreements and voluntary consent. The agreement must be reached prior to the date of the public holiday.

If an employee works on a public holiday but there is no proper written agreement in place, the "alternate" standard of s. 27 will not apply and, accordingly, the employee’s entitlement will be determined under the "default" standard of s. 26. This is so even if there was an oral agreement that the employee would work on the public holiday - see the discussion of the written agreement requirements at ESA Part I, s. 1(3) and s. 1(3.1). The ESA 2000 permits employees and employers to opt into the alternate standard of s. 27 only where there is a written agreement. Where there is no written agreement, the default standard of s. 26 will apply to the employee. In this case, an officer would apply the requirements of s. 26 when determining what violations have occurred. The requirements of s. 26 are:

1. The employee receives the public holiday off; and
2. The employee be paid public holiday pay.

For example, where an employee worked on a public holiday without providing their written agreement and was paid their regular rate, the officer could find that there has been a non-monetary violation of the requirement that the employee receive the public holiday off, and a monetary violation of the requirement that the employee be paid public holiday pay.

In determining how much money the employer owes the employee, the amount of public holiday pay owing would NOT be offset by the amount of wages earned by the employee for working on the holiday. The employee earned those wages for working and must be paid in addition to the amount of public holiday pay owing. This would be so even if the employer paid the employee a higher rate for working on the public holiday, such as 1.5 times the employee’s regular rate. Again, the higher rate of wages was earned by the employee for working on the public holiday and must be paid in addition to the amount of public holiday pay owing.

Note that this section applies to employees in all operations, including hospitals, continuous operations, and hotels, motels, tourist resorts, restaurants and taverns, who agree to work on a public holiday that falls on a day that is ordinarily a working day for them. Employees who are employed in a hospital, continuous operation, or hotel, motel, tourist resort, restaurant or tavern who are required to work on a public holiday that is ordinarily a working day for the employee and that is a day the employee is not on vacation are governed by ESA Part X, s. 28.

Employee’s entitlement – s. 27(2)

This section sets out to what an employee who agreed to work on a public holiday pursuant to s. 27(1) is entitled.

The default entitlement for such an employee is:

• Wages paid at the employee’s regular rate for each hour worked on the public holiday – see the definition in ESA Part I, s. 1

  plus

• A substitute holiday:
  • For which the employee must be paid public holiday pay. This means that the substitute holiday takes the place of the public holiday. Therefore, the formula to be used for calculating public holiday pay for the substitute holiday would be the formula that is in effect on the date of the substitute holiday. See ESA Part X, s. 24 for the calculation of public holiday pay;
  • Which must be scheduled for a day that would ordinarily be a working day for the employee; and
  • Which must be scheduled for a day before the deadlines set out in s. 27(3) – see ESA Part X, s. 26.

  plus

• A written statement setting out specifics about the substitute holiday, as outlined in section 27(2.1).

However, if an employer and employee agree in writing, the employee is entitled to public holiday pay plus premium pay for each hour worked on the public holiday, rather than to the default entitlement.

See ESA Part I, s. 1(3) for a discussion of agreements in writing.

See ESA Part X, s. 24 for the calculation of public holiday pay and premium pay.

If the employee does not agree in writing to receive public holiday pay plus premium pay, then the entitlement in s. 27(2)(a)  will apply. The alternate entitlement of s. 27(2)(b) applies only if there is such a written agreement. If there is no such written agreement, the default entitlement of s. 27(2)(a) will apply. This assumes that there was a written agreement in place for the employee to work on the holiday, as required by s. 27(1). If there was no written agreement to work on the holiday, then the default standard of s. 26 will apply, rather than s. 27. See ESA Part X, s. 26 for more details.

The entitlements described above are subject to s. 27(4), discussed below.

Substitute day of holiday – s. 27(2.1)

The Fair Workplaces, Better Jobs Act, 2017, SO 2017, c 22, added s. 27(2.1) to the ESA 2000, effective January 1, 2018. Where the employee has agreed to work on a public holiday and the employer is substituting the public holiday in accordance with s. 27(2) (a), this section requires the employer to provide the employee with a written statement:

• Naming the public holiday on which the employee has agreed to work,
• Specifying the date that has been selected to be the substitute holiday, and
• Noting the date on which the employee was given the statement.

The written statement must be provided to the employee before the actual public holiday. The legislation does not specify the manner in which the written statement must be provided. Consistent with the Program’s position regarding the provision of the poster under ESA Part III, s. 2(5), an employer may provide the statement as a printed copy or as an attachment in an email to the employee.

There is no requirement for the parties to sign the written statement, nor is there a requirement for the employee to agree to the date of the substitute holiday, so long as it is a day that would ordinarily be a working day for the employee and that it is scheduled for a day before the deadlines set out in s. 27(3), discussed below.

Restriction – s. 27(3)

27(3) A day that is substituted for a public holiday under clause (2)(a) shall be,

This section establishes a deadline for scheduling a substitute holiday an employee earns pursuant to s. 27(2)(a).

The section states that the employer must schedule the substitute holiday (which, pursuant to s. 27(2)(a), must be set for a day that is ordinarily a working day for the employee) for a day that is no later than three months after the date of the public holiday.

The substitute day can be taken before the actual public holiday itself. For example, Canada Day is on a Tuesday. It is not a violation of the ESA 2000 for an employee who has agreed in writing to work on Canada Day to be given Monday, June 30, as the substitute holiday. If the employer and employee agree in writing, the substitute holiday can be scheduled for a day that is up to 12 months after the date of the public holiday. An employee may wish to extend the three-month deadline if, for example, they want to tack the substitute holiday on to their next vacation but the vacation is more than three months away. See ESA Part 1, s. 1(3) and (3.1) for a discussion of written agreements and voluntary consent.

The written agreement contemplated in s. 27(3)(b) must be made prior to the public holiday as the employer is required under s. 27(2.1) to give the employee a written statement setting out the date of the substitute day.

Where certain work not performed – s. 27(4)

This section simply sets out the entitlements for an employee who agreed in writing to work on the public holiday pursuant to s. 27(1), but who fails to perform certain work.

Every situation that impacts on an employee’s entitlement is covered. That is, this provision sets out the consequences in the event of any of the following circumstances, whether they occur on their own or in combination with one another:

• Performs only some of the work on a public holiday that the employee had agreed to perform:
  • With reasonable cause; or
  • Without reasonable cause.
• Performs none of the work on a public holiday that the employee had agreed to perform:
  • With reasonable cause;
  • Without reasonable cause.
• Does not work the entire regularly scheduled days of work before or after the public holiday without reasonable cause.

In the discussion below:

• "Substitute holiday" is a day off that would ordinarily be a working day for the employee, for which the employee is entitled to receive public holiday pay – see ss. 27(2) and (3)
• "Public holiday pay" is as calculated pursuant to ESA Part X, s. 24(1)
• "Premium pay" is as calculated pursuant to ESA Part X, s. 24(2)
• See ESA Part X, s. 26(2) for a discussion of the phrase "fail to work all of [the employee’s] regularly scheduled day of work [before/after] the public holiday".
• See ESA Part X, s. 26(2) for a discussion of the term "reasonable cause". That discussion takes places in the context of the criterion of failure to work the regularly scheduled day before or after a public holiday, but applies equally to the criterion of failure to work on the public holiday.

The statutory phrases, "performs none of the work that he or she agreed to perform on the public holiday" and "performs some of the work that he or she agreed to perform on the public holiday but fails . . . to perform all of it" do not refer to the quantity or quality of the employee’s work. Rather, it refers to whether the employee worked the whole shift, part of the shift, or none of the shift they agreed to work on the public holiday.

For example, an employee who agreed to work an eight-hour shift on Canada Day and who usually assembles 100 widgets during an eight-hour shift will not be considered to have performed only some of the work merely because they assembled only 80 widgets on Canada Day. So long as the employee worked through the entire eight-hour shift, they will have performed all of the work they agreed to perform on the holiday.

The situations and consequences addressed in each of the five paragraphs in s. 27(4) are as follows:

Performs none of the work on public holiday without reasonable

Employee performs none of the work on the public holiday, (i.e., did not show up at all for the shift, without reasonable cause: Employee has no entitlement.

Pursuant to s. 27(4) paragraph 1, the employee has no entitlement of any sort under s. 27(2): not to a substitute holiday, to public holiday pay or to premium pay. When the employee entered into the s. 27(1) agreement, the general entitlement under ESA Part X, s. 26 ceased to apply to that employee.

Performs none of the work on public holiday with reasonable cause

Works last regularly scheduled day of work

Employee performs none of the work on the public holiday, (i.e., did not show up at all for the shift), with reasonable cause, employee entitled to:

• Substitute holiday;

  or

• Public holiday pay if employee earlier agreed to be paid public holiday pay and premium pay for each hour they were going to work on the public holiday instead of receiving a substitute holiday

Pursuant to s. 27(4) paragraph 2, the employee is entitled to a substitute holiday or public holiday pay if the employee agreed to be paid public holiday pay and premium pay instead of receiving a substitute holiday.

Fails to work last or first regularly scheduled day of work

Employee:

• Performs none of the work on the public holiday, (i.e., did not show up at all for the shift), with reasonable cause;

  and

• Fails to work all of the last regularly scheduled day of work before or first regularly scheduled day of work after the public holiday, without reasonable cause:

Employee has no entitlement

Pursuant to s. 27(4) paragraph 2, the employee has no entitlement of any sort: not to a substitute holiday, to public holiday pay or to premium pay. When the employee entered into the s. 27(1) agreement, the general entitlement under ESA Part X, s. 26 ceased to apply to that employee.

Performs only some of the work on public holiday without reasonable cause

Employee performs some but not all of the work they agreed to perform on the public holiday, (i.e., showed up for only part of the shift), without reasonable cause: Employee entitled only to premium pay for each hour worked on the public holiday.

Pursuant to s. 27(4) paragraph 3, the employee is entitled only to premium pay for each hour worked on the public holiday. They have no other entitlements to public holiday pay or a substitute holiday.

Performs only some of the work on public holiday with reasonable cause

Works last regularly scheduled day of work

Employee performs some but not all of the work they agreed to perform on the public holiday, (i.e., showed up for only part of the shift), with reasonable cause, employee entitled to:

• Wages at employee’s regular rate for each hour worked on the public holiday PLUS a substitute holiday;

  or

• Public holiday pay plus premium pay for each hour worked on the holiday if the employee earlier agreed to be paid public holiday pay plus premium pay for each hour they were going to work on the public holiday instead of receiving a substitute holiday.

Pursuant to s. 27(4) paragraph 4, the employee is entitled to wages at their regular rate plus a substitute holiday, or public holiday pay plus premium pay if the employee agreed to they were going to work on the public holiday instead of receiving a substitute holiday.

Fails to work last or first regularly scheduled day of work

Employee:

• Performs some but not all of the work they agreed to perform on the public holiday, (i.e., showed up for only part of the shift), with reasonable cause;

  and

• Fails to work all of their last regularly scheduled day of work before or first regularly scheduled day of work after the public holiday, without reasonable cause:

Employee entitled only to premium pay for each hour worked on the public holiday.

Pursuant to s. 27(4) paragraph 4, the employee is only entitled to premium pay for each hour worked on the public holiday. They have no other entitlements.

Performs all work on public holiday but fails to work last or first regularly scheduled day of work

Employee:

• Performs all of the work they agreed to perform on the public holiday (i.e. showed up for the entire shift);

  but

• Fails to work all of their last regularly scheduled day of work before or first regularly scheduled day of work after the public holiday, without reasonable cause:

Employee entitled only to premium pay for each hour worked on the public holiday.

Pursuant to s. 27(4) paragraph 5, the employee is entitled only to premium pay. They have no other entitlements

Note: An employee who is entitled to a substitute holiday pursuant to s. 27(2)(a) does not lose that entitlement if they fail without reasonable cause to work all of their regularly last regularly scheduled day of work before or first regularly scheduled day of work after the substitute holiday. An employee does not have to "requalify" for the substitute holiday once they have already earned it.

Section 28 – Requirement to work on a public holiday: Certain operations

Requirement to work on a public holiday: Certain operations – s. 28(1)

This section provides a second exception to the entitlement in ESA Part X, s. 26(1) to a public holiday off with public holiday pay. The first exception is found in ESA Part X, s. 27. Section 28(1) allows some flexibility in certain operations that cannot reasonably be expected to shut down on public holidays, and permits employers to require employees in these operations to work on a public holiday. The entitlement for an employee in these operations who is required to work on a public holiday is set out in s. 28(2).

The terms "hospital" and "continuous operation" are defined in ESA Part I, s. 1.

In order for s. 28 to apply, the employee must be employed "in" a hospital, continuous operation, hotel, motel, tourist resort, restaurant or tavern. A question has arisen as to whether s. 28 will apply to employees who work for a call centre that deals exclusively with making hotel reservations. It is Program policy that s. 28 will not apply in that case (assuming that the call centre is not actually located in the hotel, and assuming that the call centre is not a continuous operation), since such employees are employed in a call centre, not in a hotel.

Note that the employer’s ability to require employees in these operations to work on the public holiday applies only if the holiday falls on a day that is ordinarily a working day for that employee and is a day the employee is not on vacation. If the holiday falls on a day that is not ordinarily a working day for the employee in these operations, or on a day the employee is on vacation, ESA Part X, s. 29 applies and the employee has a choice of whether or not to work on the holiday, if requested – see ESA Part X, s. 26(1) for a discussion on how to determine whether or not a public holiday falls on a day that is ordinarily a working day for an employee who has an irregular schedule.

Note also that Part XVII Retail Business Establishments has the effect of granting some of the above employees the right to refuse to work on a public holiday, if they work in a retail business establishment, despite s. 28(1). Specifically, "retail" employees who work in a continuous operation (e.g., a 24-hour convenience store) have the right to refuse to work on public holidays, even if the holiday falls on a day that is ordinarily their working day. For further discussion, please refer to ESA Part XVII Retail Business Establishments.

Further note that the employer’s ability to require employees to work on a public holiday is also subject to the employee’s right to take a day off for purposes of religious observance under the Ontario Human Rights Code, RSO 1990, c H.19, and to the terms of the employee’s employment contract, which may state, for example, that an employee cannot be required to work on public holidays (and, as well, the requirements in the ESA 2000 regarding hours of work and daily and weekly/bi-weekly rest provisions).

Employee’s entitlement – s. 28(2)

This section sets out what an employee who is required to work on a public holiday pursuant to s. 28(1) is entitled to.

The entitlement for such an employee is either:

• Wages paid at the employee’s regular rate (see ESA Part I, s.1 – Definitions) for each hour worked on the public holiday, plus a substitute holiday:
  • For which the employee must be paid public holiday pay. This means that the substitute holiday takes the place of the public holiday. Therefore, the formula to be used for calculating public holiday pay for the substitute holiday would be the formula that is in effect on the date of the substitute holiday. See ESA Part X, s. 24(1) for the calculation of public holiday pay;
  • Which must be scheduled for a day that would ordinarily be a working day for the employee; and
  • Which must be scheduled for a day before the deadlines set out in s. 28(3);

  plus

• A written statement setting out specifics about the substitute holiday, as outlined in section 28(2.1)

  or

• Public holiday pay for the day plus premium pay for each hour worked on the holiday – see ESA Part X, s. 24

The employer chooses which of the options above to provide the employee. This feature of s. 28 distinguishes it from the entitlements under s. 27 and s. 30, where the first option is the default entitlement and the second option applies only if the employee agrees in writing.

The entitlement in s. 28(2) is subject to s. 28(4).

An issue has arisen as to the appropriate remedy where an employer requires an employee to work on the public holiday but neither provides a substitute holiday, nor pays the employee premium pay or public holiday pay. The question is which clause - (a) or (b) - should the officer assess under. In these cases, the officer looks for evidence as to whether the employer provided the employee with a written statement setting out the day that was to be substituted for the public holiday as required by s. 28(2.1). If there was no statement provided to the employee, it is Program policy that the officer will assess under clause (b).

If the officer assesses under clause (a), they will not be able to order a substitute holiday for the employee if the three-month deadline for taking the substitute holiday has already passed, because to do so would not be in accordance with s. 28(3)(a) - although the parties could, of course, agree to such a result on their own.

Substitute day of holiday – s. 28(2.1)

Subsection 28(2.1) is a new provision added by the Fair Workplaces, Better Jobs Act, 2017, SO 2017, c 22, effective January 1, 2018. Where the employee has agreed to work on a public holiday and the employer is substituting the public holiday in accordance with s. 28(2)(a), this section requires the employer to provide the employee with a written statement:

1. Naming the public holiday on which the employee is required to work,
2. Specifying the date that has been selected to be the substitute holiday, and
3. Noting the date on which the employee was given the statement.

The written statement must be provided to the employee before the actual public holiday. The legislation does not specify the manner in which the written statement must be provided. Consistent with the Program’s position regarding the provision of the poster under ESA Part II, s. 2(5), an employer may provide the statement as a printed copy or as an attachment in an email to the employee.

There is no requirement for the parties to sign the written statement, nor is there a requirement for the employee to agree to the date of the substitute holiday, so long as it is a day that would ordinarily be a working day for the employee and that it is scheduled for a day before the deadlines set out in s. 28(3).

Restriction – s. 28(3)

This section establishes a deadline for scheduling a substitute holiday an employee earns pursuant to s. 28(2)(a).

The section states that the employer must schedule the substitute holiday (which, pursuant to s. 28(2)(a), must be set for a day that is ordinarily a working day for the employee) for a day that is no later than three months after the date of the public holiday.

The substitute day can be taken before the actual public holiday itself. For example, Canada Day is on a Tuesday. It is not a violation of the ESA 2000 for an employee who was required to work on Canada Day to be given June 30, for example, as the substitute holiday.

If the employer and employee agree in writing, the substitute holiday can be scheduled for a day that is up to 12 months after the date of the public holiday. See ESA Part I, s. 1(3) and (3.1) regarding agreements in writing. An employee may wish to extend the three-month deadline if, for example, they want to tack the substitute holiday on to their next vacation but the vacation is more than three months away.

The written agreement contemplated in s. 28(3)(b) must be made prior to the public holiday as the employer is required under s. 28(2.1) to give the employee a written statement setting out the date of the substitute day. See ESA Part 1, s. 1(3) for a discussion of issues surrounding agreements, e.g., retroactivity, specificity, and requirements regarding informed and voluntary consent.

Where certain work not performed – s. 28(4)

This section sets out the entitlements for an employee who was required to work on the public holiday pursuant to s. 28(1), but who fails to perform certain work.

Every situation that impacts on an employee’s entitlement is covered. That is, this provision sets out the consequences in the event of any of the following circumstances, whether they occur on their own or in combination with one another:

• Performs only some of the work on a public holiday that the employee was required to perform:
  • With reasonable cause; or
  • Without reasonable cause.
• Performs none of the work on a public holiday that the employee was required to perform:
  • With reasonable cause; or
  • Without reasonable cause.
• Does not work the entire regularly scheduled days before or after the public holiday without reasonable cause.

In the discussion below:

• "Substitute holiday" is a day off that would ordinarily be a working day for the employee, for which the employee is entitled to receive public holiday pay – see ESA Part X, ss. 28(2) and (3).
• "Public holiday pay" is as calculated pursuant to ESA Part X, s. 24(1).
• "Premium pay" is as calculated pursuant to ESA Part X, s. 24(2).
• See ESA Part X, s. 26(2) for a discussion of the phrase "fail to work all of [the employee’s] regularly scheduled day of work [before/after] the public holiday".
• See ESA Part X, s. 26(2) for a discussion of the term "reasonable cause". That discussion takes places in the context of the criterion of failure to work the regularly scheduled day before and after a public holiday, but applies equally to the criterion of failure to work on the public holiday.

The statutory phrases, "performs none of the work that he or she required to perform on the public holiday" and "performs some of the work that he or she required to perform on the public holiday but fails . . . to perform all of it," does not refer to the quantity or quality of the employee’s work. Rather, it refers to whether the employee worked the whole shift, part of the shift, or none of the shift they were required to work on the public holiday.

For example, an employee who was required to work an eight-hour shift on Canada Day and who usually assembles 100 widgets during an eight-hour shift will not be considered to have performed only some of the work merely because they assembled only 80 widgets on Canada Day. So long as the employee worked the entire eight-hour shift, they will have performed all of the work they were required to perform on the holiday.

The situations and consequences addressed in each of the five paragraphs in s. 28(4) are:

Performs none of the work on public holiday without reasonable cause

Employee performs none of the work on the public holiday, (i.e., did not show up at all for the shift), without reasonable cause, employee has no entitlement.

Pursuant to s. 28(4), paragraph 1, the employee has no entitlement of any sort: not to a substitute holiday, to public holiday pay or to premium pay. When the employee was required to work on the public holiday, ESA Part X, s. 26 and s. 27 and the entitlements available under those provisions no longer applied to that employee.

Performs none of the work on public holiday with reasonable cause

Works last regularly scheduled day of work

Employee performs none of the work on the public holiday, (i.e., did not show up at all for the shift), with reasonable cause, employee entitled to:

• Substitute holiday;

  or

• Public holiday pay

Pursuant to s. 28(4) paragraph 2, the employer chooses which to give the employee: a substitute holiday or public holiday pay.

Fails to work last or first regularly scheduled day of work

Employee:

• Performs none of the work on the public holiday, (i.e., did not show up at all for the shift), with reasonable cause;

  and

• Fails to work all of the last regularly scheduled day of work before or first regularly scheduled day of work after the public holiday, without reasonable cause:

Employee has no entitlement.

Pursuant to s. 28(4) paragraph 2, the employee has no entitlement of any sort: not to a substitute holiday, to public holiday pay or to premium pay. When the employee was required to work pursuant to s. 28(1), s. 26 and s. 27 and the entitlements available under those provisions no longer applied.

Performs only some of the work on public holiday without reasonable cause

Employee performs some but not all of the work they were required to perform on the public holiday (i.e., showed up for only part of the shift) without reasonable cause:

Employee entitled only to premium pay for each hour worked on the public holiday.

Pursuant to s. 28(4) paragraph 3, the employee is entitled only to premium pay for each hour worked on the public holiday. They have no other entitlements - not to public holiday pay or to a substitute holiday.

Performs only some of the work on public holiday with reasonable cause

Works last regularly scheduled day of work

Employee performs some but not all of the work they agreed to perform on the public holiday, (i.e., showed up for only part of the shift), with reasonable cause, employee entitled to:

• Wages at employee’s regular rate for each hour worked on the public holiday PLUS a substitute holiday;
• Public holiday pay PLUS premium pay for each hour worked on the holiday.

Pursuant to s. 28(4) paragraph 4, the employer chooses which to give the employee: wages at the regular rate plus a substitute holiday, or public holiday pay plus premium pay.

Fails to work last or first regularly scheduled day of work

Employee:

• Performs some but not all of the work they agreed to perform on the public holiday, (i.e., showed up for only part of the shift), with reasonable cause;

  and

• Fails to work all of their last regularly scheduled day of work before or first regularly scheduled day of work after the public holiday, without reasonable cause:

Employee entitled only to premium pay for each hour worked on the public holiday.

Pursuant to s. 28(4) paragraph 4, the employee is only entitled to premium pay for each hour worked on the public holiday.

Performs all work on public holiday but fails to work last or first regularly scheduled day of work

Employee:

• Performs all of the work they agreed to perform on the public holiday (i.e., showed up for the entire shift);

  but

• Fails to work all of their last regularly scheduled day of work before or first regularly scheduled day of work after the public holiday, without reasonable cause:

Employee entitled only to premium pay for each hour worked on the public holiday.

Pursuant to s. 28(4) paragraph 5, the employee is only entitled to premium pay for each hours worked on the public holiday.

Note: An employee who is entitled to a substitute holiday pursuant to s. 28(2)(a) does not lose that entitlement if they fail without reasonable cause to work all of their last regularly scheduled day of work before or first regularly scheduled day of work after the substitute holiday. An employee does not have to "requalify" for the substitute holiday once they have already earned it.

Section 29 - Public holiday not ordinarily a working day

Public holiday not ordinarily a working day - s. 29(1)

This provision sets out an employee’s entitlement when a public holiday falls on a day that is not ordinarily the employee’s working day, or is during the employee’s vacation.

This provision applies to employees in all operations, including hospitals, continuous operations, and hotels, motels, tourist resorts, restaurants and taverns. See Part X, ss. 26-28 for the entitlements if a public holiday falls on a day that is ordinarily an employee’s working day and that is not during an employee’s vacation.

It is not always readily apparent which days are ordinarily working days for a given employee. Whether or not a holiday falls on a day that is ordinarily a working day for an employee will determine what the employee is entitled to for the holiday, and, in certain industries, whether or not the employer can require the employee to work on the holiday. For example, the question has arisen in the restaurant industry as to how to determine which days are ordinarily working days for part-time employees who have irregular shifts. It is Program policy that to make this determination, one looks at the days that the employee tells the employer that they are available to work and the past scheduling practice. For example, an employee is hired on the basis that they are available to work Mondays through Fridays, and is actually scheduled to work on each of those days (although not on any regular basis, e.g., Monday and Tuesday one week, Tuesday and Friday the next week, Wednesday and Thursday the next week, etc.). In this case, the Program would consider Mondays through Fridays to be days that would ordinarily be working days for that employee. However, if that same employee is only ever scheduled to work Tuesdays and Thursdays, the Program would consider only Tuesdays and Thursdays to be days that would ordinarily be working days for that employee, even though they said they were available all weekdays.

For employees who are on lay-off, a leave under ESA Part XIV, or any other leave of absence when a public holiday occurs, their pre-leave or pre-lay-off schedule determines whether the public holiday falls on a day that would or would not ordinarily be a working day for an employee, and thus whether s. 26 or s. 29 will apply to that particular public holiday. For example, if an employee on parental leave worked Mondays to Fridays before the leave, Mondays to Fridays are days that are ordinarily working days for that employee, and Saturdays and Sundays are days that would not ordinarily be working days for that employee. Consequently, s. 26 will apply to any public holiday that falls on a weekday during that employee’s leave, and s. 29 will apply to any public holiday that falls on a weekend during that employee’s leave.

Some employees may have had a varying, irregular schedule before their leave or lay-off, such that it cannot be determined whether or not the employee would have been scheduled to work on the day the public holiday falls. In this case, because there are no days that, in the words of s. 26, "would ordinarily be a working day for" that employee, s. 29 will apply to any public holiday that occurs during the leave or lay-off.

See ESA Part XVIII.1, s. 74.10 for a discussion of the application of Part X to assignment employees of temporary help agencies, particularly the Program’s policy that a public holiday will be considered to fall on a day that is ordinarily a working day for an assignment employee only if the employee is on assignment and the holiday falls on a day that they would be working pursuant to the assignment (assuming there had been no holiday). In that case only, s. 26, 27 or 28 would apply to determine an assignment employee’s public holiday entitlements. In all other cases, s. 29 would apply. Note that s. 29(2.1) and s. 29(2.2) must be read together with s. 74.10.

When a public holiday falls on a day that is not ordinarily an employee’s working day or is during an employee’s vacation, the employee is to be given a substitute day off, which must be:

• Scheduled for a day that would ordinarily be a working day for the employee;
• Paid as public holiday pay. This means that the substitute holiday takes the place of the public holiday. Therefore, the formula to be used for calculating public holiday pay for the substitute holiday would be the formula that is in effect on the date of the substitute holiday. See ESA Part X, s. 24(1) for the calculation of public holiday pay; and
• Scheduled for a day before the deadlines set out in s. 29(2).

In addition, the employer must provide the employee a written statement setting out specifics about the substitute holiday, as outlined in s. 29(1.1) below.

The entitlement to a substitute day under s. 29 is subject to:

• Section 29(2.1), which states that an employee who is on pregnancy or parental leave or lay-off when a public holiday falls will get public holiday pay for the public holiday, rather than a substitute day;
• Section 29(3), which allows employers and employees to agree in writing that the employee will be paid public holiday pay for the holiday instead of receiving a substitute day;
• Section 29(4), which disentitles an employee from a substitute day and public holiday pay if they fail without reasonable cause to work all of their regularly scheduled shifts before or after the public holiday; and
• Section 30(1), which allows employers and employees to agree in writing that an employee will work on a public holiday that falls on a day that is not ordinarily a working day for the employee or is a day that is during their vacation.

Substitute day of holiday – s. 29(1.1)

Subsection 29(1.1) is a new provision added by the Fair Workplaces, Better Jobs Act, 2017, SO 2017, c 22, effective January 1, 2018. Where the employer is substituting the public holiday in accordance with s. 29(1), this section requires the employer to provide the employee with a written statement:

1. Naming the public holiday that is being substituted,
2. Specifying the date that has been selected to be the substitute holiday, and
3. Noting the date on which the employee was given the statement.

The written statement must be provided to the employee before the actual public holiday. The legislation does not specify the manner in which the written statement must be provided. Consistent with the Program’s position regarding the provision of the poster under ESA Part II, s. 2(5), an employer may provide the statement as a printed copy or as an attachment in an email to the employee.

There is no requirement for the parties to sign the written statement, nor is there a requirement for the employee to agree to the date of the substitute holiday, so long as it is a day that would ordinarily be a working day for the employee and that it is scheduled for a day before the deadlines set out in ESA Part X, s. 29(2).

Restriction - s. 29(2)

This section establishes a deadline for scheduling a substitute holiday an employee earns pursuant to s. 29(1).

The section states that the employer must schedule the substitute holiday (which, pursuant to s. 29(1), must be set for a day that is ordinarily a working day for the employee) for a day that is no later than three months from the date of the public holiday.

The substitute day can be taken before the actual public holiday itself. For example, Canada Day is on a Saturday. It is not a violation of the Act for an employee whose ordinary working days are Mondays to Fridays to be given Friday, June 30, as the substitute holiday.

If the employer and employee agree in writing, the substitute holiday can be scheduled for a day that is up to 12 months after the date of the public holiday. See ESA Part I, ss. 1(3) and (3.1) for a discussion of written agreements. An employee may wish to extend the three-month deadline if, for example, they want to tack the substitute holiday on to their next vacation but the vacation is more than three months away.

The written agreement contemplated in s. 29(2)(b) must be signed prior to the public holiday as the employer is required under s. 29(1.1) to give the employee a written statement setting out the date of the substitute day.

Employee on leave or lay-off - s. 29(2.1)

This section provides that where an employee is on a pregnancy leave, parental leave, or lay-off when a public holiday falls, and it falls on a day that is not ordinarily a working day for that employee, the employee is entitled only to public holiday pay for the holiday, rather than to the substitute day with public holiday pay provided for in s. 29(1).

Note that s. 29(2.1) does not apply to an employee on a Part XIV leave other than pregnancy or parental leave. Thus, if an employee is on sick leave, family responsibility leave, bereavement leave, family medical leave, family caregiver leave, critical illness leave, domestic or sexual violence leave, crime-related child disappearance leave, child death leave, reservist leave, organ donor leave, or declared emergency leave when a public holiday falls and it falls on a day that would not ordinarily be a working day for the employee, the employee will be entitled to the substitute day with public holiday pay provided by s. 29(1).

Note also that because the amount of public holiday pay owing is based on the wages earned by an employee in the four work weeks prior to the public holiday, the amount of public holiday pay to which an employee who was on pregnancy or parental leave or lay-off for any time during those four weeks will be less than what the employee’s entitlement would have been had the employee not been on leave or lay-off for any part of those four weeks.

In the case of an employee who is on lay-off (as opposed to pregnancy or parental leave), s. 29(2.1) must be read in conjunction with s. 29(2.2).

For information about the application of s. 29(2.1) to assignment employees of temporary help agencies, see ESA Part XVIII.1, s. 74.10.

Lay-off resulting in termination - s. 29(2.2)

This section states that s. 29(2.1) will not apply to employees who are on lay-off if their employment has been terminated pursuant to ESA Part XV, s. 56(1)(c). For example, an employee is on lay-off for more than 13 weeks in any period of 20 consecutive weeks. None of the conditions in s. 56(2)(b) or (c) that would allow a lay-off to continue longer than 13 weeks are present. Pursuant to s. 56(1)(c), the employee is considered to be terminated. However, they may not be considered to be severed for the purposes of the severance pay provisions; they may still be on lay-off. In this circumstance, s. 29(2.2) states that s. 29(2.1) does not apply. As a result, s. 29(1) will apply and the employee will be entitled to a substitute day with public holiday pay. If the employment ends before the substitute day, ESA Part X, s. 32 would apply and the employee will just be entitled to public holiday pay.

The application of this section was clarified in respect of certain assignment employees of temporary help agencies by s. 74.10(2) on November 6, 2009 with the coming into force of the Employment Standards Amendment Act (Temporary Help Agencies) 2009, SO 2009, c 9. Pursuant to s. 74.2, Part XVIII.1 of the Act, which includes s. 74.10(2), does not apply to those assignment employees who provide professional services, personal support services or homemaking services as defined in the Home Care and Community Services Act, 1994 if the assignment is made under a contract between the employee or their employer and a community care access corporation within the meaning of the Community Care Access Corporations Act, 2001, SO 2001, c 33. As a result, the application of s. 29(2.2) is not clarified in respect of such employees by s. 74.10(2).

Section 74.10(2) provides that a period of temporary lay-off referred to in s. 29(2.2) is to be determined in accordance with s. 56 as that section is modified by s. 74.11 for the purposes of Part XV. For further discussion see ESA Part XVIII.1, s.74.10.

Agreement re : Public holiday pay - s. 29(3)

This section allows an employer and employee to agree in writing that an employee will be paid public holiday pay for a holiday instead of receiving a substitute day the employee would otherwise be entitled to pursuant to s. 29(1).

See ESA Part X, s. 24 for the calculation of public holiday pay.

Exception - s. 29(4)

This section provides that employees are not entitled to the entitlements under s. 29(1), (2.1) or s. 29(3) if they fail, without reasonable cause, to work their entire regularly scheduled day of work before or after the holiday.

This section is intended to discourage employees from unilaterally taking an extra day off around the public holiday by failing to show up on the day they are expected to work before or after the holiday, or by showing up to work later or leaving earlier than expected before or after the holiday.

This exception to the entitlement is identical in substance to s. 26(2). Please refer to ESA Part X, s. 26 for a discussion of this provision.

Note: An employee who is entitled to a substitute holiday pursuant to s. 29(1) does not lose that entitlement if they fail without reasonable cause to work all of their last regularly scheduled day of work before or first regularly scheduled day of work after the substitute holiday. An employee does not have to "requalify" for the substitute holiday once they have already earned it.

Section 30 - Agreement to work where not ordinarily a working day

Agreement to work where not ordinarily a working day - s. 30(1)

This section provides an exception to the entitlement in ESA Part X, s. 29.

Section 29 provides employees (who are not on pregnancy or parental leave, or on lay-off) with the right to a substitute holiday or, if the employer and employee agree in writing, to public holiday pay for a holiday, when the public holiday falls on a day that is not ordinarily a working day for an employee or is on a day that the employee is on vacation. Section 30(1) allows employers and employees in these circumstances to agree that the employee will work on the public holiday. If an agreement is made, the entitlement in s. 30(2) will apply instead of those set out in s. 29.

The agreement to work on the public holiday must be in writing. See ESA Part I, s. 1(3) and (3.1) for information on this written requirement, and other issues regarding agreements, e.g., retroactivity, specificity, and requirements on informed and voluntary consent. The written agreement must be reached prior to the date of the public holiday.

Employee’s entitlement - s. 30(2)

This section sets out the entitlement of an employee who agreed to work on a public holiday that fell on a day that is not ordinarily a working day, pursuant to s. 30(1).

The default entitlement for such an employee is wages paid at the employee’s "regular rate" (see ESA Part I, s. 1) for each hour worked on the public holiday, plus a substitute holiday:

• For which the employee must be paid public holiday pay. This means that the substitute holiday takes the place of the public holiday. Therefore, the formula to be used for calculating public holiday pay for the substitute holiday would be the formula that is in effect on the date of the substitute holiday. - see s. 24(1) for the calculation of public holiday pay;
• Which must be scheduled for a day that would ordinarily be a working day for the employee; and
  • Which must be scheduled for a day before the deadlines set out in s. 30(3).

  plus

• A written statement setting out specifics about the substitute holiday, as outlined in section 30(2.1). See s. 30(2.1) below for more details.

However, if an employer and employee agree in writing, the employer must, instead of the default entitlement, give to the employee public holiday pay plus premium pay for each hour worked on the public holiday. See ESA Part 1, s. 1(3) and (3.1) for a discussion on agreements in writing. See ESA Part X, s. 24 for the calculation of public holiday pay and premium pay.

The entitlements described above are subject to s. 30(4) - see the discussion below.

Substitute day of holiday – s. 30(2.1)

Subsection 30(2.1) is a new provision added by the Fair Workplaces, Better Jobs Act, 2017, SO 2017, c 22, effective January 1, 2018. Where the employee has agreed to work on a public holiday and the employer is substituting the public holiday in accordance with s. 30(2) (a), this section requires the employer to provide the employee with a written statement:

1. Naming the public holiday on which the employee has agreed to work,
2. Specifying the date that has been selected to be the substitute holiday, and
3. Noting the date on which the employee was given the statement.

The written statement must be provided to the employee before the actual public holiday. The legislation does not specify the manner in which the written statement must be provided. Consistent with the Program’s position regarding the provision of the poster under ESA Part II, s. 2(5), an employer may provide the statement as a printed copy or as an attachment in an email to the employee.

There is no requirement for the parties to sign the written statement, nor is there a requirement for the employee to agree to the date of the substitute holiday, so long as it is a day that would ordinarily be a working day for the employee and that it is scheduled for a day before the deadlines set out in s. 30(3).

Restriction - s. 30(3)

This section establishes a deadline for scheduling a substitute holiday an employee earns pursuant to s. 30(2)(a).

The section states that the employer must schedule the substitute holiday (which, pursuant to s. 30(2), must be set for a day that is ordinarily a working day for the employee) for a day that is no later than three months from the date of the public holiday.

The substitute day can be taken before the actual public holiday itself. For example, Canada Day is on a Saturday. An employee usually works weekdays, but agrees in writing to work on Canada Day. It is not a violation of the Act for the employee to be given Friday, June 30, as the substitute holiday.

If the employer and employee agree in writing the substitute holiday can be scheduled for a day that is up to 12 months after the date of the public holiday. See ESA Part 1, s. 1(3) and (3.1) for a discussion on written agreements. An employee may wish to extend the three-month deadline if, for example, they want to tack the substitute holiday on to their next vacation but the vacation is more than three months away.

The written agreement contemplated in s. 30(3)(b) must be reached prior to the public holiday as the employer is required under s. 30(2.1) to give the employee a written statement setting out the date of the substitute day. See ESA Part I, s. 1 for a discussion of issues around agreements, e.g., retroactivity, specificity, and requirements regarding informed and voluntary consent.

Where certain work not performed - s. 30(4)

This section sets out the entitlements for an employee who agreed to work on the public holiday pursuant to s. 30(1), but who fails to perform certain work.

Every situation that impacts on an employee’s entitlement is covered. That is, this provision sets out the consequences in the event of any of the following circumstances, whether they occur on their own or in combination with one another:

• Employee performs only some of the work on a public holiday that the employee had agreed to perform:
  • With reasonable cause; or
  • Without reasonable cause.
• Employee performs none of the work on a public holiday that the employee had agreed to perform:
  • With reasonable cause; or
  • Without reasonable cause.
• Employee does not work the entire regularly scheduled days of work before or after the public holiday without reasonable cause.

In the discussion below:

• "Substitute holiday" is a day off that would ordinarily be a working day for the employee, for which the employee is entitled to receive public holiday pay - see ESA Part X, s. 30.
• "Public holiday pay" is as calculated in s. 24(1) - see ESA Part X, s. 24.
• "Premium pay" is as calculated in s. 24(2) - see ESA Part X, s. 24.
• See ESA Part X, s. 26(2) for a discussion of the phrase "fail to work all of [the employee’s] regularly scheduled day of work [before/after] the public holiday".
• See ESA Part X, s. 26(2) for a discussion of the term "reasonable cause". That discussion takes places in the context of the criterion of failure to work the regularly scheduled day before and after a public holiday, but applies equally to the criterion of failure to work on the public holiday.

The statutory phrases, "performs none of the work that he or she agreed to perform on the public holiday" and "performs some of the work that he or she agreed to perform on the public holiday but fails . . . to perform all of it," does not refer to the quantity or quality of the employee’s work. Rather, it refers to whether the employee worked the whole shift, part of the shift, or none of the shift they agreed to work on the public holiday.

For example, an employee who agreed to work an eight-hour shift on Canada Day and who usually assembles 100 widgets during an eight-hour shift will not be considered to have performed only some of the work merely because they assembled only 80 widgets on Canada Day. So long as the employee worked the entire eight-hour shift, they will have "performed all of the work" they agreed to perform on the holiday.

The situations and consequences addressed in each of the five paragraphs in s. 30(4) are:

Performs none of the work on public holiday without reasonable cause

Employee performs none of the work on the public holiday, (i.e., did not show up at all on the holiday), without reasonable cause: employee has no entitlement.

Pursuant to s. 30(4) paragraph 1, the employee has no entitlement of any sort: not to a substitute holiday, to public holiday pay or to premium pay. When the employee entered into the s. 30(1) agreement, the entitlement under s. 29 ceased to apply to that employee.

Performs none of the work on public holiday with reasonable cause

Works last regularly scheduled day of work

Employee performs none of the work on the public holiday, (i.e., did not show up at all on the holiday), with reasonable cause, employee entitled to:

• Substitute holiday,

  or

• Public holiday pay if the employee had earlier agreed to be paid public holiday pay and premium pay for each hour they were going to work on the public holiday instead of receiving a substitute holiday.

Pursuant to s. 30(4) paragraph 2, the employee is entitled to either a substitute holiday or public holiday pay if the employee had earlier agreed to be paid public holiday pay and premium pay for each hour they were going to work on the public holiday instead of receiving a substitute holiday.

Fails to work last or first regularly scheduled day of work

Employee performs none of the work on the public holiday, (i.e., did not show up at all), with reasonable cause AND fails to work all of the last regularly scheduled day of work before or first regularly scheduled day of work after the public holiday, without reasonable cause:

Employee has no entitlement

Pursuant to s. 30(4) paragraph 2, the employee has no entitlement of any sort: not to a substitute holiday, to public holiday pay or to premium pay. When the employee entered into the s. 30(1) agreement, the general entitlement under ESA Part X, s. 29 ceased to apply to that employee.

Performs only some of the work on public holiday without reasonable cause

Employee performs some but not all of the work they agreed to perform on the public holiday, (i.e., showed up for only part of the shift) without reasonable cause:

Employee entitled only to premium pay for each hour worked on the public holiday

Pursuant to s. 30(4), paragraph 3, the employee is entitled only to premium pay for each hour worked on the public holiday. They have no other entitlements - not to public holiday pay or to a substitute holiday.

Performs only some of the work on public holiday with reasonable cause

Works last regularly scheduled day of work

Employee performs some but not all of the work they agreed to perform on the public holiday, (i.e., showed up for only part of the shift) with reasonable cause:

Employee entitled to:

• Wages at employee’s regular rate for each hour worked on the public holiday PLUS a substitute holiday,

  or

• Public holiday pay plus premium pay for each hour worked on the public holiday if the employee had earlier agreed to be paid public holiday pay plus premium pay for each hour they were going to work on the public holiday instead of receiving a substitute holiday.

Pursuant to s. 30(4) paragraph 4, the employee is entitled to either wages at their regular rate plus a substitute holiday, or public holiday pay plus premium pay if they agreed to be paid public holiday pay plus premium pay instead of receiving a substitute holiday.

Fails to work last or first regularly scheduled day of work

Employee performs some but not all of the work they agreed to perform on the public holiday, (i.e., showed up for only part of the shift), with reasonable cause AND fails to work all of their last regularly scheduled day of work before or first regularly scheduled day of work after the public holiday, without reasonable cause:

Employee entitled only to premium pay for each hour worked on the public holiday

Pursuant to s. 30(4) paragraph 4, the employee is only entitled to premium pay for each hour worked on the public holiday.

Performs all work on public holiday but fails to work last or first regularly scheduled day of work

Employee performs all of the work they agreed to perform on the public holiday (i.e., showed up for the entire shift), but fails to work all of their last regularly scheduled day of work before or first regularly scheduled day of work after the public holiday, without reasonable cause:

Employee entitled only to premium pay for each hour worked on the public holiday

Pursuant to s. 30(4) paragraph 5, the employee is only entitled to premium pay for each hour worked on the public holiday.

Note: An employee who is entitled to a substitute holiday pursuant to s. 30(2)(a) does not lose that entitlement if they fail without reasonable cause to work all of their last regularly scheduled day of work before or first regularly scheduled day of work after the substitute holiday. An employee does not have to "requalify" for the substitute holiday once they have already earned it.

Section 31 - Premium pay hours not overtime hours

This section means that any hours worked on a public holiday that are compensated with premium pay are to be excluded when determining whether an employee’s hours of work exceed the applicable overtime threshold.

Note that only those hours that are worked on a public holiday AND that are compensated with premium pay are excluded when determining whether or not the employee has crossed the overtime threshold. For example, if an employee works on Canada Day for regular pay and is given a substitute day off with public holiday pay, the hours worked on Canada Day are counted.

Note also that those hours that are worked on a public holiday and compensated with premium pay are excluded only for the purposes of determining overtime entitlements. They are not excluded for any other purposes, such as the hours of works limits or the weekly/biweekly rest periods.

The following examples illustrate the application of s. 31:

Example 1:

Employee works on a public holiday (Monday) and is paid public holiday pay plus premium pay for every hour worked on the holiday.

Employee’s schedule:

• Sunday: No hours worked
• Monday (public holiday): 8 hours
• Tuesday: 12 hours
• Wednesday: 9 hours
• Thursday: 8 hours
• Friday: 8 hours
• Saturday: 8 hours

Actual hours worked = 53 hours

Number of hours to be included in overtime threshold calculation = 53 actual hours worked minus 8 hours worked on the public holiday for which the employee was paid premium pay = 45 hours

Number of overtime hours = 45 hours minus 44 hours = 1 hour

Assume that the employee’s rate of pay is $15.00 per hour.

For the 53 hours worked in that work week, the employee is entitled to:

• Regular pay = 44 hours x $15/hour = $660
• Premium pay for work on public holiday = ($15 x 1.5) x 8 hours = $180
• Overtime Pay = 1 hour x ($15 x 1.5) = $22.50
• Public holiday pay = Regular wages earned and vacation pay payable in the four work weeks before the work week in which the public holiday occurred, divided by 20. Assume $132.

Total wages owing = $994.50

Example 2:

Employee works on a public holiday (Monday) and is paid his or her regular rate for hours worked on the public holiday plus receives a substitute day off with public holiday pay, scheduled to be taken in two months.

Employee’s schedule:

• Sunday: No hours worked
• Monday (public holiday): 8 hours
• Tuesday: 12 hours
• Wednesday: 9 hours
• Thursday: 8 hours
• Friday: 8 hours
• Saturday: 8 hours

Actual hours worked = 53 hours

Number of hours to be included in overtime threshold calculation = 53 hours (the 8 hours worked on the public holiday are included in the total because they were not compensated with premium pay)

Number of overtime hours = 53 hours minus 44 hours = 9 hours

Assume that the employee’s rate of pay is $15.00 per hour.

For the 53 hours worked in that work week, the employee is entitled to:

• Regular pay = 44 hours x $15/hour = $660
• Premium pay for work on public holiday = $0
• Overtime Pay = 9 hours x ($15 x 1.5) = $202.50
• Public holiday pay = $0 in this week (For the work week in which the substitute day falls, the public holiday pay will be: regular wages earned and vacation pay payable in the four work weeks before the work week in which the substitute holiday fell, divided by 20.)

Total wages owing = $862.50

Section 32 – If employment ends

This section provides that an employee whose employment is terminated before they received their substitute day off with public holiday pay is owed the public holiday pay. The employer must pay the public holiday pay no later than the later of seven days after the termination or the day that would ordinarily have been the employee’s next pay day.

Section 32 will apply regardless of the reason for the employment coming to an end, whether it be because the employee resigned, or was terminated, whatever the reason behind the termination. For example, s. 32 will apply even if an employee is terminated because they were guilty of wilful misconduct that has not been condoned by the employer and is therefore not entitled to termination pay or notice.

Section 24(1) sets out the calculation that is used to determine the amount of public holiday pay owing. Because public holiday pay for a substitute holiday is calculated on the basis that the substitute day is a public holiday in accordance with  s. 27(2)(a), s. 28(2)(a), s. 29(1) and s. 30(2)(a), the formula in s. 24(1) applies when calculating public holiday pay for substitute days.

As a result, the four work week time frame over which the calculation for a substitute holiday is performed is normally the four work weeks prior to the work week in which the substitute holiday falls.

However, where the employee’s employment has been terminated prior to the substitute day being taken, s. 32 provides that the amount of public holiday pay owing is to be determined using the actual public holiday as the reference point.

That is, in accordance with ESA Part X, s. 24(1), the four work weeks prior to the actual holiday is the relevant time frame for the calculation.