In McGonigle v OCEAN FLUIDS LTD., operating as Ocean Fluids & Filtration, 2026 ABESAB 3, the Alberta Employment Standards Appeal Body concluded that all the weekdays an employee had booked off during his employment were vacation days, instead of “weekend” or “rest days”.
The decision reminds employers to communicate their expectations to employees regarding hours of work, vacation entitlements, and how vacation requests will be handled. The decision is also an example of why employers should maintain clear and consistent records regarding their employees’ earnings.
Facts
The key facts are as follows:
- Meryl McGonigle worked as a Main Shop Hand for Ocean Fluids Ltd. from September 3, 2018, to November 8, 2024.
- The Employer ran a 24/7 operation that required work when work was available, even if it fell on weekends. Some days the Employer had no work or only a few hours of work for the Employee. The Employee still received his full salary (subject to a few unauthorized deductions).
- The Employer’s approach to booking time off was informal. There was no written employment agreement setting out the Employee’s hours of work, nor did the parties submit any written workplace policies into evidence relating to employee vacation entitlements or how vacation requests would be handled.
- The Employee often booked time off by writing “off,” or “booked off” on his timesheet. He insisted that days so marked were not vacation days, but rather were his “weekends”, regardless of whether they fell on Saturday, Sunday, or a weekday. If the Employee intended for a day to be a vacation day, he marked a day as “v” or “vac”. The Employee maintained that he had only taken nine such vacation days during the relevant period of his employment.
- The Employer met with the Employee in September 2022 to discuss concerns with his attendance. The Employer advised the Employee that any days he took off would be viewed as vacation days, and that going forward all time off would need to be requested and approved in advance.
- The Employee filed an Employment Standards Complaint shortly after his employment ended. An Employment Standards Officer ordered the Employer to pay the Employee $3,887.96 as wages, $188.23 as overtime pay, $504.76 as general holiday pay, and $4,807.69 as pay in lieu of notice of termination.
- The Officer found that the Employee had received $8,451.92 in vacation pay for 33 vacation days, resulting in an overpayment of vacation pay to the Employee in the amount of $489.42.
- The Employee appealed against parts of the Order relating to vacation and holiday pay, arguing that he had 1) only taken nine vacation days; and 2) not consented to receiving days in lieu instead of holiday pay.
Analysis / Conclusion
Vacation Days or Rest Days?
The Employment Standards Code requires Employers to give Employees a minimum number of rest days per four-week period. Accordingly, the Appeal Body adopted an approach which acknowledged the Employee’s statutory right to days of rest.
The Officer had applied a presumption that rest days for salaried employees typically fall on weekends. The Appeal Body instead reviewed the Employee’s timesheets and subsequently determined that most of the days the Employee had not worked were weekends, while most of the days he had specifically booked off were weekdays. The Appeal Body concluded that the Employee’s days of rest were more likely to fall on a weekend instead of a weekday. The Appeal Body considered all the weekdays the Employee had booked off as being vacation days, and all the weekend days he had booked off as being rest days.
There was some disagreement between the Employee’s timesheets and the notes prepared by the Employer’s payroll administrator regarding the number of hours the Employee had worked. In resolving the disagreement, the Appeal Body preferred the Employee’s timesheets for the following reasons:
- The Employer’s payroll administrator had not personally supervised the Employee’s work, nor did she have firsthand knowledge of his hours.
- The Employer had failed to specify what vacation it viewed the Employee to have taken on his paystubs. The Employer’s failure to keep up-to-date records of the Employee’s earnings in a clear or consistent way prompted the Appeal Body to accept the Employee’s timesheets as the most reliable evidence regarding the hours he had worked.
Applying the above approach, Appeal Body concluded that the Employee had taken 33 vacation days and was not owed any vacation pay (the same conclusion reached by the Officer). The Appeal Body dismissed the parts of the Appeal relating to vacation pay.
Holiday Pay
The Employee also sought holiday pay for the statutory holidays he had worked, noting that he had never agreed to the Employer’s practice of providing a day in lieu instead of holiday pay. The Appeal Body rejected the Employee’s argument, noting that the Code permits employers to provide a pay in lieu instead of holiday pay regardless of whether the Employee consents to the same.
After reviewing the Employee’s timesheets, the Appeal Body concluded that the Employer had failed to provide the Employee with a day in lieu for time worked on April 7, 2023. The Appeal Body allowed the appeal regarding the holiday pay owed for April 7, 2023, and directed Employment Standards to recalculate the amount payable to the Employee based on four hours of work on April 7, 2023.
My Take
The decision indicates that when determining whether days off for salaried employees are “vacation days” or “rest days”, the Appeal Body will consider how the parties conducted themselves over the course of the employment relationship, noting in the present case that the parties typically treated weekends as rest days.
Crucial to the Appeal Body’s analysis was that the Employer had met with the Employee in September 2022 to clarify the Employer’s expectations regarding hours worked, vacation entitlements, and how vacations days should be requested. The Appeal Body noted “The Appellant’s contention that being booked off was something different than vacation is not reasonable in light of the September 2022 meeting”.
The decision also serves as another reminder for employers to maintain clear and consistent records, particularly regarding an employee’s earnings. Here, the Employer’s failure to maintain clear records resulted in the Appeal Body preferring the Employee’s evidence regarding the number of hours he had worked.
Lastly, the decision confirms that employers are entitled to provide days in lieu instead of holiday pay, regardless of whether their employees consent to the same.
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