The indemnity relating to annual leave of the employee contemplated in sections 67 and 68 is equal to 4% of the gross wages of the employee during the reference year. In the case of the employee contemplated in section 69, the indemnity is equal to 6% of the gross wages of the employee during the reference year.
Should an employee be absent owing to sickness, an organ or tissue donation for transplant or an accident under the first paragraph of section 79.1, or on maternity or paternity leave during the reference year and should that absence result in the reduction of that employee's annual leave indemnity, the employee is then entitled to an indemnity equal, as the case may be, to twice or three times the weekly average of the wage earned during the period of work. An employee contemplated in section 67 whose annual leave is less than two weeks is entitled to that amount in proportion to the days of leave credited to his account.
The Government may, by regulation, determine a higher indemnity than that provided for in this section for an employee on maternity or paternity leave.
Notwithstanding the second and third paragraphs, the annual leave indemnity shall not exceed the indemnity to which the employee would have been entitled if he had not been absent or on leave owing to a reason mentioned in the second paragraph.
1979, c. 45, s. 74; 1980, c. 5, s. 5; 1983, c. 22, s. 103; 1990, c. 73, s. 25, s. 71; 2002, c. 80, s. 23; O.C. 984-2005; 2007, c. 36, s. 3; 2010, c. 38, s. 5.
The employee referred to in section 67, 68 or 69 ALS is entitled to an annual leave indemnity which is equal to 4% or 6% of the gross wages he earned during the reference year, depending on the length of his uninterrupted service with the employer.
Example During a reference year, an employee worked 26 weeks, earning an average weekly wage of $500; he was absent from work due to sickness for 26 weeks. The employee was entitled to two weeks of leave under section 68.The annual leave indemnity is then calculated as follows:
26 (weeks of work) x $500.00 (wage) = $13,000.00
$13,000.00 ÷ 26 = $500.00 (average weekly wage)
$500.00 x 2 (weeks – section 68 ALS) = $1,000.00
The annual leave indemnity is thus $1,000.00.
It should be emphasized that under no circumstances shall the indemnity exceed the compensation to which an employee would have been entitled, had he not been absent from work or on leave for one of four reasons listed in the second paragraph.
Moreover, it is specified that, for an employee on maternity or paternity leave, the government is entitled, by regulation, to determine a compensatory indemnity higher than that provided for in the second paragraph of section 74 but not exceeding that to which the employee would have been entitled had he not been absent from work.
Example An employee worked 44 weeks, earning a weekly wage of $500.00; he was absent for four weeks by reason of sickness; and he was laid off for four weeks. This employee is entitled to an annual leave of two weeks under section 68 ALS.
The indemnity must be calculated in the following manner:
44 (weeks of work) x $500.00 (wage) = $22,000.00
$22,000.00 ÷ 44 = $500.00 (average weekly wage)
$500.00 x 2 (weeks - section 68 ALS) = $1,000.00
$1,000.00 x 48 (weeks worked + weeks off sick)
÷ 52 (number of weeks in the year) = $923.08
Consequently, the annual leave indemnity is $923.08.