We at LegalVision cannot believe it is already December. And along with the office Secret Santa, BBQs in the Courtyard and scorching heat, December brings with it Christmas, Boxing Day and New Year’s Day. In short, public holidays! Public holidays fall under the National Employment Standards (NES) which means that employees are entitled not to work on a public holiday. Although you may request an employee to work on a public holiday, it cannot be a requirement.This article outlines situations where a full-time or part-time employee can refuse to work, and an employer’s obligations with regard to public holidays.

Your employment contracts need to comply with the NES, and you cannot contract out of the entitlements the NES provides to employees. If your employment contracts contravene the NES, you may face fines of up to $10,800 (if you are an individual) or $54,000 (a corporation).

Refusing on Reasonable Grounds Under the National Employment Standards

The NES protects an employee’s workplace right to reasonably refuse to work on a public holiday, and guarantees payment where an employee is resultingly absent from work. The NES also prevents you from taking any action against an employee who does reasonably refuse to work on the public holiday.

Whether or not an employee’s refusal to work on a public holiday is reasonable depends on several factors, and an employer should consider the following questions:

  • What is the nature of the business?
  • What type of work does the employee perform?
  • What are the employee’s personal circumstances and their family responsibilities?
  • Should the employee reasonably expect you to require them to work on the public holiday?
  • Is your employee hired on a part-time or full-time basis? Are they casual or shift work?
  • How much notice did you give the employee in making the request?
  • How much notice did your employee give you in refusing the request?

How I Much do I Have to Pay an Employee if They Don’t Work on the Public Holiday?

If your employee chooses not to work on the public holiday, employers must pay their employees (excluding casual employees). Employees are only entitled to their base rate of pay for their ordinary hours of work, and not any bonuses, overtime or penalty rates. Employers do not need to pay their employees if the public holiday falls on a day the employee doesn’t typically work. This is particularly relevant for part-time workers.

Conclusion

If you need your employees to work on a public holiday, make sure you give them enough notice to consider your request. If they refuse, consider the circumstances in determining whether their refusal is reasonable. Make sure that your employment contracts comply with the NES. You can get a lawyer to review and amend your existing employment contracts so that they are compliant and also protect your rights as employers.

Dhanu Eliezer

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