THE QUESTION
I requested a week-long vacation from my manager three months in advance of when the vacation would take place. Then, a month later, my boss cancelled the vacation because of a new project that came up. I’ve already booked non-refundable flights and accommodations for myself and my partner. Is my employer legally allowed to rescind a vacation request after they’ve accepted it?
THE FIRST ANSWER
Lai-King Hum, founder and senior lawyer, Hum Law, Toronto
Yes, your employer can do this because it is for a business reason two months before the planned start date of your vacation. However, if your vacation expenses are non-refundable, then ask your employer to pay for those expenses because you incurred them only after you obtained approval.
Under common law, employers have a duty of good faith, which requires them to cancel and reschedule your vacation in a reasonable manner. If you are in Newfoundland and Labrador or Saskatchewan, your employer is explicitly required to reimburse those expenses by legislation.
If you are in Ontario, you are also entitled to reimbursement. A court has found that an employee’s entitlement to vacation time is an important benefit which should not be interfered with arbitrarily. Absent a reasonable business-driven reason for changing an employee’s vacation and compensation for losses incurred after the vacation was approved, employers should comply with their implied duty to ensure an employee’s enjoyment of their time off. Even small employers are expected to have contingent arrangements in place to deal with employee absences from work so that vacations are not arbitrarily disrupted.
Your employer has a new project that requires the cancellation of your vacation, and you’ve been given two months notice. Ask for the reimbursement of your non-refundable expenses and reschedule your vacation.
THE SECOND ANSWER
Leanne M. Walsh, founder and lawyer, West Coast Workplace Law, Richmond and Vernon, B.C.
Taking vacation is something we all look forward to. Each province has employment standards legislation, which extends vacation entitlements to those employees and includes rules about vacation. While legislation in most provinces is silent on an employer’s obligations following the decision to cancel or postpone an employee’s scheduled vacation, Saskatchewan and Newfoundland and Labrador impose requirements on an employer to reimburse an employee if they cancel or postpone an employee’s scheduled vacation and that decision has resulted in monetary loss to the employee.
If you are not living in one of those provinces, you may wish to check your employer’s workplace policies. Your employer’s policies may provide some guidance on how vacation in your workplace operates, including in what circumstances the employer can cancel vacation and the process to be followed. These policies may also include timelines for notice of cancellation of employee vacation, as well as reimbursement for employee losses in certain circumstances. If the employer has not abided by their own policies, this could provide a basis to raise the issue of reimbursement with your employer.
There may also be real value in speaking to your employer about the situation. Given the circumstances, perhaps the employer would reconsider their position or even help offset your losses. Alternatively, given that remote work is now commonplace, perhaps there is an opportunity to offer the employer to perform the work from your vacation locale for part of your time away, with the expectation that those vacation days would be provided to you at a later date.
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Andrea Yu