Virginia asked:

Our company is non-union and falls under the British Columbia Employment Standards Act (ESA). Under ESA Section 56 (1), the services of an employee who is on leave under this part or is attending court as a juror are deemed to be continuous for the purposes of (a) calculating annual vacation entitlement and entitlement under sections 63 and 64..

Our employees have an employee agreement which states: VACATION: You will be entitled to 20 days of annual vacation to be taken at times mutually agreed upon between you and your manager. Seven days of that vacation time is to be taken over the Christmas/New Year period when Genesis is closed. Vacation pay is paid on the regularly scheduled payroll dates (See salary clause).

Terry at ESA has informed us that an employee going onto maternity leave effective November 1, 2009, is entitled to all 20 days as it is annual vacation. She further stated that upon the employees return in 2010, the employee is to receive 20 days paid vacation for the year 2010 as employment is continuous.

I understand the first part, the employee being entitled to their vacation for the year worked but I have concerns regarding the second. What if the employee decides not to return at the end of her maternity/parental leave are we required by law to then pay out 20 days vacation for the time she was on her leave as the Act states this time was continuous employment?

Is it not possible to pro-rate the paid vacation for the year the staff takes her leave and then pro-rate the remainder for when she returns? Or does the wording "annual vacation" put the employer on the hook for the full amount?

Howard Levitt answered:

This is incorrect. The employee is entitled to the number of weeks vacation each week prescribed by the Act, not four weeks. Even for the weeks prescribed, although they are entitled to the time off, they are only entitled to be paid the relevant percentage of their wages from the previous year for the time allotted.

Ie, four per cent for two weeks and six per cent for three weeks. Since she earned very little, that will amount to very little money.

About the author

Howard Levitt, Counsel to the national law firm Lang Michener. He is author of, The Law of Dismissal in Canada, The Quick Reference Guide to Employment Law and an upcoming book on Canadian Hiring Law. He is Editor In Chief of the Dismissal & Employmnet Law Digest.

Email: hlevitt@langmichener.ca
Phone: (416) 307-4059
Website Bio: http://www.langmichener.ca/index.cfm?fuseaction=people.personDetail&id=9659.

 
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