The Question
My wife works at a small company in Ontario, which has less than 10 staff including the owner. She gets two weeks of vacation but she has no say as to when she may take her vacation days. There are 10 statutory holidays and the owner has mandated that the office close on the day before a long weekend and that the day the office is closed be counted as a vacation day for payroll. Is this legal? If it is not, what can my wife do to change this?
The Answer
The company cannot force your wife to take a vacation day before a statutory holiday because it decides to close the office that day. She has a right to take her vacation in a two-week block or two separate one-week periods, so she cannot be made to separate her vacation time into one-day vacations before long weekends. Vacation time can only be separated into periods shorter than one or two weeks with an employee's consent.
These rules are generally the same across Canada, except in federally regulated workplaces (banks, telecommunications companies, radio and television and transportation) where vacation time can be divided to less than a week at a time.
But aside from being entitled to a vacation of at least one week at a time, employees do not have a right to take vacation whenever they chose. Employers are legally allowed to set vacation periods for their staff, although most workplaces co-ordinate time off with their employees even if they are not technically required to do so.
If your wife objects to the mandatory vacation days, she can send her employer a copy of the relevant portion of the legislation (in this case, Section 35 of Ontario's Employment Standards Act, 2000) and ask that the owner voluntarily comply with the section; or she can file a complaint with the Ministry of Labour, which investigates and enforces alleged violations of the law. All provinces have similar enforcement tribunals.
Daniel A. Lublin is a partner at Whitten & Lublin, representing both employers and employees in workplace legal disputes. E-mail: Dan@canadaemploymentlawyer.com
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Daniel Lublin