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THE QUESTION
I’ve been working for the same company for three years as a full-time, salaried employee. My employment offer was for equal-time shifts, which means two weeks on and two weeks off, plus three weeks of vacation. I have never been able to take my vacation days because of staff shortages. Am I entitled to request vacation pay in lieu? Should I be remunerated for the additional weeks that I’ve worked for the past three years?
THE FIRST ANSWER
Stephanie McLean, lawyer, Forte Workplace Law, Surrey, B.C. and Calgary
In British Columbia, employees are entitled to vacation time and vacation pay under the Employment Standards Act. Vacation time and vacation pay are related, but separate entitlements. Employers must ensure employees take all of their vacation time entitlement every year, even if there are staff shortages. Employers cannot simply pay out vacation pay instead of providing vacation time. However, if an employee has not taken vacation time, the employer must still pay the employee vacation pay. That means if an employee has not taken any vacation in a year and was paid an annual salary, the employer will owe vacation pay in addition to the annual salary.
If you have worked more weeks in a year than your agreed schedule, you may be entitled to additional pay or overtime pay. Your entitlement may depend on the type of job you have as well as what your employment contract says about your hours of work and the basis for your pay. Laws about vacation and overtime vary from province to province. It would be beneficial to discuss these issues with your employer or seek advice from an employment lawyer to ensure your rights are protected and you receive any compensation you are entitled to.
THE SECOND ANSWER
Joshua Lerner, employment lawyer, Lerners LLP, Toronto and London, Ont.
If you have been unable to take vacation time because of staff shortages throughout your employment, this likely violates your rights under your province’s labour code or act. For example, under Ontario’s Employment Standards Act (ESA), employees with less than five years of service are entitled to a minimum:
- Two weeks of vacation time after each 12-month period; and
- 4 per cent vacation pay (based on gross wages)
The ESA requires employers to ensure employees take this vacation within 10 months of the entitlement year (for example, vacation earned in 2024 must be used by October 2025). The minimum two weeks of vacation per year cannot be forfeited.
Your additional third week of vacation is a contractual benefit, not a statutory one. Depending on your employment terms, it may be subject to a “use-it-or-lose-it” policy. You should review your contract to confirm.
Employers cannot contract out of ESA obligations. Payment in lieu is not a substitute for ensuring you take your mandated time off. While past vacation time cannot be retroactively taken, you are likely justified in requesting compensation for unused vacation from 2023 and earlier. (You still have until October 2025 to use your 2024 vacation.)
Moving forward, remind your employer of its obligation to schedule your vacation annually. Once you reach five years of service, your ESA entitlements increase to three weeks of vacation time and 6 per cent vacation pay.
If your employer refuses to compensate you for unused vacation or does not co-operate in scheduling future vacation time, consulting an employment lawyer may be the best course of action to enforce your rights.
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