HR Home Forums Answer for Vacation pay/deferral in Ontario

Conner Lantz
Keymaster
Post count: 4836

I’m going to run this past our payroll guru, Alan McEwen for confirmation, but here’s my less expert opinion:
1. Yes, provided that the new vacation entitlement doesn’t fall below the ESA minimum or violate the terms of any preexisting collective agreements, employment contracts or benefit plans
2.Same answer
3. Also the same answer. In fact, this may be a necessity to the extent your changes encounter union resistance or violate the collective agreement.
4. Potentially yes to the extent these vacation changes are made unilaterally. However, you may have some leeway if the changes are only temporary and made in response to the COVID-19 crisis. The problem is that the outcome of constructive dismissal litigation is extremely hard to predict. Each case turns on the specific facts, the credibility and even like-ability of the parties and the arbitrator/judge’s individual outlook. But, yes, constructive dismissal would be a risk.
5. Discrimination, too, is a potential risk. A policy that seems neutral on its face may still be discriminatory if it has the effect of discriminating against a protected group, e.g., a fitness test in which ALL applicants must complete an obstacle course in X minutes may have the effect of discriminating against women, pregnant women, older and disabled applicants. To the extent all or most of the employees affected by the vax cuts fall into one of the protected groups, this claim for discrimination would be on the table.
I’m pretty comfortable with Answers 4 and 5 but want to see what Alan says about Answers 1 to 3.  Hope this helps and I’ll circle back as soon as I hear from Alan. Glenn