Other Payments or Benefits Do Not Affect Vacation Rights - Act Part 7, Section 59
Last updated on April 1, 2021Contents:
Summary
Text of Legislation
Policy Interpretation
Related Information
Summary
This section prohibits an employer from reducing vacation entitlement because of other payments or benefits.
Text of Legislation
59. (1) An employer must not reduce an employee's annual vacation or vacation pay because the employee
(a) was paid a bonus or sick pay, or
(b) was previously given a longer annual vacation than the minimum required under section 57.
(2) Despite subsection (1) (b), an employer may reduce an employee's annual vacation or vacation pay because at the written request of the employee the employer allowed the employee to take an annual vacation in advance.
Policy Interpretation
The right to a vacation with pay is a minimum standard that cannot be waived. Other benefits cannot be used to reduce an employee's entitlement to minimum annual vacations.
Subsection (1)(a)
Other Benefits Cannot Offset Vacations
If an employer authorizes time off for an employee, whether paid or otherwise, for a reason not related to vacation, they cannot treat this time as vacation at a later date
Subsection (1)(b)
If an employer grants an entitlement greater than the minimum requirements under the Act, this additional vacation entitlement is considered to be over and above the requirements of the Act and cannot be used to reduce, or offset, an employee’s later vacation entitlements. Where an employee requests, in writing, to be allowed to take annual vacation in advance, this is permitted under subsection (2) below.
Subsection (2)
Vacations granted in advance
Vacations granted in advance of entitlement should be recorded in payroll records in accordance with s.28 of the Act. If vacation is granted in the first 12 months of employment, in advance of entitlement under s.57 of the Act, payroll records should indicate that the vacation time taken was in advance of the actual entitlement, or in addition to, statutory minimums.
Similarly, if a vacation entitlement is “borrowed” from a future employment year, this should be reflected in the payroll records.
Example:
Marcia, an employee in her second year of employment receives 2 weeks annual vacation and, in response to her written request, the employer, Amber’s Snowboarding Co., provides an additional week vacation in advance of entitlement. Amber’s Snowboarding Co. keeps a record of the written request and indicates in the payroll records that Marcia has received 1-week annual vacation in advance of entitlement.
In the third year of employment the Amber’s Snowboarding Co. reduces the 2-week vacation entitlement by one week because Marcia had received a vacation in advance as noted in the payroll records.
Employees covered by a collective agreement
If a collective agreement contains any provisions about annual vacation or vacation pay that meet or exceed the requirements of Part 7, those provisions of the collective agreement replace the Act’s requirements for employees covered by the agreement. Otherwise, the Act’s requirements are deemed to be incorporated in the collective agreement.
Where there is a collective agreement, disputes respecting the application, interpretation or operation of Part 7 must be resolved through the grievance procedure, not through the enforcement provisions of the Act.
Under ss. 33 and 37 of the Employment Standards Regulation certain employees and occupations are excluded from Part 7.
Related sections of the Act or Regulation
ESA