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THE QUESTION
When I signed my original employment contract in 2020, it said that I would be entitled to an additional week of vacation after five years of working. My role changed two years ago to a better position, so I signed a new contract. I guess I didn’t read the fine print closely enough because now, coming up to my five years of service, my manager says that I’m no longer eligible for that extra week of vacation because I changed roles. I’m disappointed, to say the least. What are my options? Does my employer still have to honour the extra vacation week because of the original contract?
THE FIRST ANSWER
Stephanie Brooks and Sophie Purnell, Purnell Employment Law, Calgary
The starting point is to compare your original and new contracts. If the original contract guaranteed the extra vacation, and the new one doesn’t explicitly revoke that benefit (or says nothing about it), you might still be entitled to an additional week of vacation after five years of working. For an employer to take away a contractual benefit (like vacation entitlement), there generally needs to be clear evidence that you agreed to the change. Just continuing to work doesn’t automatically mean you accepted the change. Courts have been cautious about assuming employees willingly agree to changes when there’s a power imbalance between employers and employees.
It’s worth checking if your employer has a vacation policy. Vacation entitlements are often tied to years of service, not job roles. If the policy supports your claim, you could have a strong argument.
You’re legally entitled to minimum vacation time or vacation pay based on years of service under statutory employment standards. For example, in Alberta, an employee is entitled to two weeks after each of the first four years of employment and at least three weeks after five consecutive years of employment. In Alberta, if the original contract offered more than these statutory minimums, section 3 of Alberta’s Employment Standards Code might enforce those extra benefits. If the new contract provides less than the statutory minimums, the new terms would not be enforceable.
Consider speaking to HR and explaining your situation. If you feel stuck, consulting a lawyer could help clarify your rights. Lawyers can also assist you behind the scenes without disrupting your working relationship (because, let’s face it, employers generally don’t like hearing “I talked to a lawyer”).
THE SECOND ANSWER
Alexandra Monkhouse, partner, Monkhouse Law Employment Lawyers, Toronto
There are two considerations depending on your initial vacation entitlement. First, even if you signed a new employment contract for your promotion, if you initially only had two weeks of vacation, under applicable minimum employment standards you may still be entitled to an additional week of vacation once you reach five years of seniority in Ontario, B.C., Alberta, Manitoba or if you work for a federally regulated entity such as a bank, an airline or a transportation company that crosses provincial boundaries.
Second, if you already had at least three weeks’ vacation, it may be challenging to ask for the additional week of vacation promised initially, if the new contract specifies that it constitutes the entire agreement between you and your employer and you received a raise when you signed the new contract. It would be important to know what the understanding was at the time you signed the new contract and if it was in the contemplation of both you and your employer that you would be giving up the additional week of vacation.
From a practical perspective, it may be worth explaining to your manager why it would be beneficial for you and the company to provide you with the additional week of vacation since you have proven your commitment to the firm having reached five years of seniority and that it would be an important sign of appreciation.
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