Written on behalf of Peter McSherry
Canadians will go to the voting booths on October 21st to elect their federal Member of Parliament. The right to vote is an important public right for which protections have been created to ensure that employees have sufficient time off work to vote. Persons eligible to vote should be aware of their legal rights to leave their place of employment for this purpose.
Federal law, via the Elections Act, mandates that every employee must have three consecutive hours available for voting. When their work schedule does not allow for this, their employer must accommodate them, including providing paid time off work. This right is given to every person who is a citizen of Canada and over the age of 18 years.
As long as the work schedule allows for this time outside of work hours, no additional time is required to be given. However, where the workday does not allow for this, the employer must ensure that this time is provided. The company may determine the precise three hour period at its convenience. There is a pre-determined set time. It is up to the company to assess its needs and arrange for the appropriate time off.
The same law prevents the company from threatening any form of retaliation or intimidation or otherwise interfering with this right.
In Ontario, the voting booths are open from 9:30 am to 9:30 pm. There is nothing preventing the employer from changing the normal working hours to accommodate the three hour period. For example, in Ontario, as long as the employee has left their employment by 6:30 pm, the three hour time allotment has been met. The company may well decide to have its work staff start earlier that day to allow for a normal workday to be completed sooner if necessary. There is nothing on its face wrong with this, absent a pre-existing contract that fixes the starting time of the workday.
This may raise different issues such as childcare requirements if the beginning of the workday is modified in this manner. The issue of whether this interferes with human rights protections such as family care duties may then also be raised.
Where time off is required from the regular workday, it must be with full pay.
Although the statute is clear that the employer cannot use threats or intimidation to prevent the employee from exercising these rights, there are also common-law rights that the employee may use. For example, if the employee has been terminated because they had exercised their right to vote and were not able to do so outside of work hours, there is little doubt that a court would make a finding of wrongful dismissal, require a common-law severance claim and also impose an award for aggravated damages. These latter awards have been considerable lately and will be allowed even where there may exist an employment contract which sets out the severance claim.
A company or person in violation of this statute may be subject to a fine of up to $2,000 or imprisonment of up to three years, or both for failure to allow time off. Where threats or intimidating tactics are used, the punishment may be up to $50,000 and/or imprisonment of 5 years.
The employee may waive this right but, if contested, the company must be able to prove that this was voluntary.
Legal Advice Can be Critical
This issue is not as straight forward as one might expect. If you are facing questions about this issue or any employment law question, get advice. Know your rights. Contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation.