Employer decided to pay employees for holiday falling on weekend rather than giving them a different day off
An Ontario company did not violate its collective agreement when it declined to give employees other days off when Christmas and Boxing Day fell on a weekend, the Ontario Arbitration Board has ruled.
Sensient Flavors Canada is a manufacturer of flavours used in commercial food production for the dairy industry, based in Halton Hills, Ont. In 2009, the Boxing Day statutory holiday fell on a Saturday and the company decided that instead of giving employees another day off with pay on a normal work day — the company operated Monday to Friday with no production on the weekend — Sensient decided just to pay employees their regular wages for a typical shift on the Saturday. In 2010, when Christmas Day fell on a Saturday and Boxing Day a Sunday, it did the same thing, so employees received extra pay rather than an extra paid day off. Sensient notified employees of these decisions two weeks before in 2009 and six weeks before in 2010.
Sensient made these decisions after learning its customers operated on a normal schedule on the weekdays following the holidays so it made business sense to be open on those days in order to meet its customers’ needs. The union agreed to the arrangement but indicated it would grieve the decision.
The union argued Sensient violated the collective agreement, which recognized Christmas Day and Boxing Day as statutory holidays in accordance with the Ontario Employment Standards Act, 2000 (ESA). The agreement stipulated that “if a public holiday falls on a day that would not ordinarily be a working day for an employee or a day on which the employee is on vacation, the employer shall substitute another day that would ordinarily be a working day for the employee to take off work for which he or she shall be paid public holiday pay as if the substitute day were a public holiday.” It also allowed the employer to pay the employee holiday pay instead of substituting another day off, if the employee agreed to it.
The union also said that since Sensient’s past practice was to schedule a paid day off following a holiday that occurred on a weekend, it was a reasonable expectation and the company was obligated to continue the practice. In addition, since employees were supposed to be paid a premium rate for working on holidays, making them work for the regular rate on a day that was supposed to be a holiday was forced overtime, also contrary to the collective agreement’s voluntary overtime provision.
The board found the ESA allowed for employers to pay employees holiday pay instead of substituting another day for a non-work-day holiday if both agreed to it. It also found the collective agreement echoed this with a similar provision. Since the collective agreement stipulated it was possible for the company to simply pay employees for a holiday rather than substitute another day off in the above circumstances, the union, on behalf of the employees, agreed to this option by including it in the agreement.
