Employment Service Act: What You Need to Know

Question 1 

Section 46 (1) of the Employment Service Act states that a pregnant employee is entitled to a pregnancy leave as long as she has been hired for at least 13 weeks before her due date (Employment Standards Act, 2018). Additionally, the pregnancy leave is entitled to her as long as she is employed by an employer covered by the ESA. Marianne works for the national airline in Canada, which means that the ESA covers her employer. Furthermore, she has worked there for five years, which means she has surpassed the minimum requirement for her entitlement of the leave. Marianne is entitled to a leave of absence that should last for a maximum of 17 weeks. Ordinarily, Marianne's pregnancy leave should begin at the time of her choosing, preferably close to the due date. This is because her employer is not legally obligated to decide when her leave should commence. Other factors determine the commencement of Marianne's pregnancy leave, and one is the nature of her job. Considering that she is a pilot, her journey during pregnancy should determine when to begin her leave. For instance, if she experiences complications, she may begin her leave up to 17 weeks before her due date and may extend the leave if she had not had the baby yet after her period of leave lapses. However, should Marianne commence her pregnancy leave, she must take it all at once before being allowed to resume work. 

Question 2 

According to section 49 (1) of the ESA, an individual is entitled to an unpaid family medical leave to take care of any person prescribed in subsection 3, which includes persons such as the employee's spouse, parent, child, or any other family member (Employment Standards Act, 2018). Under that provision, John is entitled to a family leave of up to 28 weeks. There is no specific time frame of service required from the employee to qualify for the family medical leave. This means that John's duration will not be considered. Similarly, the employer's number of employees in John's company will not influence his eligibility for the leave. In this case, care includes, but is not limited to, emotional and psychological support, directly caring for the ill individual, or arranging for care from a certified third-party provider. Nevertheless, the 26 weeks should be within 52 weeks (Employment Standards Act, 2018). What this means is that John can only be eligible for the family medical leave once per year. While this is the case, John does not have to take the full 26 weeks leave at once. Depending on his partner's condition, John may take a week or two and then resume work. Should his partner's condition worsen in the near future, John can take time off and take care of him because the maximum period of the family medical leave has not been reached. 

Question 3 

According to Section 50 (1) of the ESA, an employee is entitled to at least three days of sick leave per year, as long as they have been employed for more than two weeks (Employment Standards Act, 2018). The cause of sickness does not influence the leave. For instance, whether the employee falls ill during work or external forces led to such a condition, they are entitled to the leave. Jorge has worked for his current employer for more than two years, so he has already passed the minimum requirement for sick leave. Additionally, he has already missed two days of work due to illness, which means that he is qualified for the third day of leave. When he asks his employer for permission to attend a doctor's appointment due to an injured knee, his supervisor asked him to take the day off as vacation time. However, the supervisor cannot require him to do that because he has one unused sick leave day, which is unpaid. Consequently, Jorge will take sick leave day and go to have his knee attended to. While this is the case, the employers can ask for a note from the doctor, considering that he is going against what his supervisor advised. Although taking the leave is within the provisions of the ESA, such a note will help validate his case and prove that he was legally and medically obligated to take the day off. 

Question 4 

When it comes to termination of employment, section 54 of the ESA states that no employer should terminate an employee that has worked for over three months without written notice as well as its expiry (Employment Standards Act, 2018). What is more, section 63 (1) an employer severs an employee's employment if they are unable to pay them, if they constructively dismiss the employee, or lays the employee off because of the permanent discontinuance of business activities (Employment Standards Act, 2018). For Sam's case, who was recently dismissed from her employment, she may file a claim under the ESA for severance and a notice of termination and a claim of wrongful dismissal. Sam is entitled to severance pay because she worked for the institution for more than ten years. Section 64 (1) states that an employee employed for more than five tears is entitled to severance pay if terminated. One disadvantage of this system is that the severance pay does not exceed the individual's regular rap for 26 weeks. Sam's wrongful termination claim can be filed if she was the only one whose employment contract was terminated from the institution, or she did not receive a notice of termination prior to the termination. If she is unsatisfied with the reasons and circumstances resulting in her dismissal, she can also file a claim of wrongful dismissal. 

Question 5 

Any employee should be entitled to breaks. According to the provisions of section 20 (1), an employee should not work for more than five hours before being given an eating break that should last up to 30 minutes (Employment Standards Act, 2018). Sanpreet is therefore entitled to such a break. The break can be divided into two breaks each 15 minutes, which should occur in 5 hours. Nevertheless, Sanpreet works for 7 hours from 7 am to 2 pm and is thus entitled to only one break lasting 30 minutes. Such a break is unpaid, unless the contract of employment states otherwise, because at that period, the employee is not working. Even if the employer pays for the break, it should be free of any work and should not be counted in the overtime hours payment calculations. Although other employers are entitled to coffee and other breaks, Sanpreet cannot be entitled to, such due to the limited amount of hours she works. 

Question 6 

Section 50 (1) of the ESA states that an employee is entitled to sick leave without pay if they have been employed for more than two weeks. The leave is limited to three days per calendar year (Employment Standards Act, 2018). Furthermore, section 50.0.1 (1) states that the employee who has been employed for more than 14 days is entitled to unpaid family responsibility leave considering illness of the employee's spouse, parent, grandparent, child, or any other family member (Employment Standards Act, 2018). Both laws apply to all employers and employees under the provisions of the ESA. While this is the case, Jason is not entitled to both types of leaves of absence based on the contract he signed out of desperation to be employed. Considering that his father is very ill, he is entitled to the family responsibility leave as he has surpassed the two-week minimum requirement, having worked in that company for two years. Jason should, therefore, take the leave. Subsection 7 of the same section stipulates that an employee should provide the necessary evidence to show the circumstances that led to the leave. Based on that, Jason should include evidence such as certificates, medical records, and receipts. The employer has stated that Jason will be terminated once he takes the family responsibility leave. Knowing that his father is very ill and requires his help, Jason cannot ignore his condition to fulfill the requirements of his employer's contract. Therefore, he should take the leave, and should his employer fire him, he should file for a lawsuit. This is because he is entitled to the provisions of sections 50 (1) and 50.0.1 (1) as a Canadian citizen. 

Question 7 

Section 48 (1) of the Employment Service Act states that an employee who has been hired for at least 13 weeks and is the parent of a child is eligible for an unpaid leave of absence after the birth or coming into the guardianship of a child (Employment Standards Act, 2018). On the other hand, maternity leave is only granted to a person who has given birth to a child. Following the adoption of their child, Mindy, and her partner are thus entitled to parental leave not later than 78 weeks after the child came into their custody, according to Section 48 subsection 2. While this is the case, subsection 3 of the same section states that the leave should commence not later than 52 weeks after the child first came into their custody (Employment Standards Act, 2018). Mindy and her partner, nonetheless, are not entitled to payment during their parental leave. Moreover, the couple does not qualify for a maternal leave considering than the child is adopted, and neither one has given birth. If the child comes earlier than expected, Mindy and her partner can stop working and commence their leave on the day of the child's arrival. This is because the parental leave will commence then. The couple is, however, mandated to give their respective employers a written notice about their parental leave not later than two weeks after they begin. Mindy and her partner's parental leave should end 61 weeks after it began according to the provisions of section 49 (1). 

Question 8 

According to section 26 (2) (b), is an employer and employee agree that the employee should work on a public holiday, the worker is entitled to the employee public holiday pay as well as the premium pay for each hour that they work (Employment Standards Act, 2018). The entitlement is irrespective of the period of employment. Having worked as a fitness instructor at a national fitness establishment for two years, Leah and her employer arrange for her to work on Labor Day. Consequently, she will be paid the legal wages inscribed in subsection 2b alongside the wages she earns per hour for a typical working day. There are some requirements that Leah must adhere to for her to qualify for public holiday entitlements. For instance, based on the Last and First Rule, she must work and fulfill all her duties for the days before and after Labor Day. Moreover, she must work for her entire shift. However, if she fails to qualify for the public holiday entitlement, she is still entitled to the premium pay for every hour that she provides her services. 

Reference 

Employment Standards Act. (2018, November 19).  Employment Standards Act, 2000, S.O. 2000, C. 41 . Ontario.Ca . https://www.Ontario.Ca/Laws/Statute/00e41#BK47