Section 26 of Ontario’s Employment Standards Act, 2000 (“ESA”) outlines an employer’s compensation obligation towards their employees when a public holiday falls on a regular work day.
In order to be entitled to public holiday pay, the employee must pass the “Last and First Rule” – which requires the employee to work all of her/his last regularly scheduled day of work before the public holiday and all of her/his first regularly scheduled day of work after the public holiday, unless they have reasonable cause to miss the day of work.
It is important to note that the ‘last’ and ‘first’ days do not have to be the days right before and right after the public holiday. For example, an employee might not be scheduled to work the day right before or right after the holiday. Or, an employee may have requested a vacation day, or to leave early that day for an appointment. If the employer agrees to the request, then the employee’s ‘regularly scheduled’ day of work changes to reflect that agreement.
So, what is “reasonable cause”? What can be asked of an employee to determine if reasonable cause exists? Can an employer ask for more evidence to be produced from a habitual absentee employee? These can be challenging questions for employers and the ESA provides little direction.
What is reasonable cause?
According to the Ontario Ministry of Labour’s Policy and Interpretation Manual, an employee is considered to have reasonable cause for missing work when something beyond their control prevents the employee from working. This may include:
- leaves under Part XIV of the ESA, such as sick leave or family responsibility leave;
- a transportation breakdown;
- oversleeping because an alarm clock did not go off due to a power failure; or,
- a lawful strike if the employee is unionized.
Surprisingly, case law is rather limited on this issue. However, there are some cases which have provided a few more examples of grounds that qualify as reasonable cause, including:
- needing to attend court unexpectedly for a family member (or, presumably, oneself) (see: 1529150 Ontario Inc o/a The Staffing Connection v Christine Thompson and Director of Employment Standards, 2019 CanLII 80984 (ON LRB));
- a workplace injury (see: Lin v Caterpillar Tunneling Canada Corp, 2015 CanLII 68421 (ON LRB));
- not working for any reason that is permitted under the employment contract (see: 137077 Canada Inc v Sullivan, 2011 CanLII 47475 (ON LRB)); and,
- being told not to come into work by your employer (see: Ma v Euclid’s Holdings Ltd, 2016 CanLII 47890 (ON LRB)).
What proof can an employer ask for from the employee to verify ‘reasonable cause’?
Although the ESAis silent on this issue, the Ministry of Labour through the Policy and Interpretation Manual has stated that employees are responsible for showing that they had reasonable cause for missing work. However, if the employer accepts the employee’s version of events, then demanding proof is not necessary or reasonable.
Whether the employer can challenge an employee’s reasonable cause depends on the facts – is the employer suspicious of the employee, has the employer noticed a pattern of the employee often calling in sick around a holiday, etc.? In addition, many leaves under Part XIV of the ESA, which may be used as the employee’s reasonable cause justification, already give an employer the ability to request evidence to support the leave, so it can be implied to be justified for the purpose of public holiday pay.
While the employer can ask the employee to show that they had reasonable cause for missing work, they likely cannot demand the exact type of proof that the employee must provide to meet their burden. It is likely that the same procedure would apply for the determination of entitlement to public holiday pay, as is provided for under Part XIV of the ESA – an employer can require that an employee provide “evidence reasonable in the circumstances”. While this could include a doctor’s note in the case of an illness, it could also include a receipt from a pharmacy for Gravol, or a parking receipt at a walk in clinic. Similarly, for a court appearance, it could be a copy of the subpoena, or a parking receipt at the courthouse.
If you have questions about, or need any assistance with respect to, an employer’s obligations regarding public holiday pay, you are encouraged to reach out to any member of Siskinds’ Labour & Employment Group for advice and direction.
This article was written with the assistance of Madison Goodacre, articling student.