Advice regarding paid vacation

[CW888]

Hello,
my son has been with a provider for 3 months and when we gave the provider her last cheque, she said we need to pay her for 1 week vacation.
She already took 3 days off. Things got complicated when I mentioned that I should remove the 3 days from the 1 week I owe her and she said I should pay her for 2 weeks now. It does say in her contract that I have to pay for 10 days vacation, which I assume is for a year. It doesn't say in her contract that I have to pay her the full 10 days upon termination.

I thought the general rule was prorata? 3 months = 2.5 days, since she already took 3 days, I don't owe her anything?
She called and said she wants to stay on good terms and it's up to us to decide how much we should pay her for the vacation.

I personally don't think we owe her anything in terms of holidays. But we "feel" we have to pay her something. She mentioned that past parents had paid her the full 2 weeks when they terminated contracts before, but then, I don't know how long these parents had their children in her service, or whether the parents felt they had to pay her to get peace of mind.

What should I do? pay her for 2 days? (1 week minus the 3 days she already took), don't pay anything?

[Lee-Bee]

If your son was only with her for 3months I think I would pay for 3 days (1 day per month of care). It sounds like you paid for this during your time with her so I wouldn't pay any more.

I think it is different if you have been in care for a long time (1yr or more) and your time ends right before the caregivers scheduled vacation. Then I would lean more to paying for the pending vacation out of respect of her working for so long and earning it. But only 3 months in I don't think you 'owe' her any additional vacation.

Just my thoughts.

[Suzie_Homemaker]

I thought the general rule was prorata? 3 months = 2.5 days, since she already took 3 days, I don't owe her anything?

For an employee, yes. But day care providers are not employees, we are self-employed, which why parents not pay min wage for each hour of care.

If her contract say 10 days a year, then she get 10 days a year but I do agree, where only there 3 months, expecting full year vacation pay has to be clearly stated in her contract.

It not matter how long child in care when it comes to termination - the notice period is whatever was agreed for both sides.

You must check your contract carefully to see if it says that 10 days paid vacation is owed by all and follow contracted agreement exactly.

If this turn nasty and you end up in court, it will be the contract that is used. I would suggest not mentioning the pro rata calculation in court because that implies you are using Labour standard rules which are for employer/employee relationship and if judge feels you believe she is your employee, he can apply min wage for the duration of the employment term and you will end up owing the under payment.

Decide very carefully if you want her treated as employee or if you want stick to the independent contractor/self-employed contract where she not protected by Labour Standards and min wage. But you can't mix and match the rules to suit yourself. She's one or the other.

Go back your contract and read it very, very, carefully and see if it says that all 10 days vacation are due regardless of length time in her care.

[playfelt]

My concern is why you left her after only 3 months. If it was for deceitful reasons - like child was on a wait list for another program and you finally got a spot, etc. then realize that you have put the provider in the position of having told other prospective clients that she didn't have spaces and now is facing a loss of income. That likely explains why she feels she needs to be compensated. I assume that you gave the proper notification as is in your contract and plan to pay for that period even if you don't use it.

[mickyc]

It's all about how her contract is worded. If it says you are to pay for 10 days holidays regardless of of length of care then you owe her. If it doesn't say anything about it then I agree that for 3 months of care 3 paid days off is fair. It's all about how she has it worded. If she has failed to be specific in her contract then I think she needs to take the loss with you and make the change for all clients going forward.

[CW888]

My concern is why you left her after only 3 months. If it was for deceitful reasons - like child was on a wait list for another program and you finally got a spot, etc. then realize that you have put the provider in the position of having told other prospective clients that she didn't have spaces and now is facing a loss of income. That likely explains why she feels she needs to be compensated. I assume that you gave the proper notification as is in your contract and plan to pay for that period even if you don't use it.


I gave her 3 weeks notice instead of 2 weeks, to give her time to get another family and the last week (which is this week) I wasn't going to send him all the 5 days but to do it gradually and already gave her the cheque for the week.

The reason we decided to terminate is that we had some concerns about her. She basically got angry at me over the phone when we discussed the holiday thing and accused me of trying to trick her.

I've seen her stressed a few times and she has a scary look on her face when she's upset. She's cold and abrupt at times. She was perfectly fine when I gave her notice. I was a bit worried when I gave her notice in case she would get angry or snap at me. I don't think a relationship with a provider should be based on fear and have trust issues.

We were planning to leave our son in her care until next year. Thankfully my in-laws has accepted to look after him for a few months, until we get a spot at a centre. I don't think we will look for a home daycare based on this bad experience. I know there are very good providers out there but I really don't want to go through something like this again.

Anyway, my husband is going to look at the contract again today. If it says we have to pay her 2 weeks upon termination then we'll pay her. But if it's not specified and I only need to pay for 10 days per year, then we won't pay her anything. She also hasn't booked any vacation yet. If she had, we would have paid her.

[babydom]

Well regardless of the reasons as to why your leaving you'll have to abide by the contract. Which you said you were so that's great. Get your husband to bring the contract to her and ask her for clarification on what is to be paid. Then pay then wipe your hands clean and move on. Please please please don't let this bad provider tint your home daycare views. Tons out there that are way better! Best lesson here is go with your gut feeling. You said your hubby didn't like her from the ghetto so you should've listened to him in the beginning. (Don't tell him I said that ;) ). sick days can be used for anything in a home daycare setting. It can be for when the provider is sick, when her children are sick, when she needs a recharge day or when she has an apt. So the fact that she wasn't sick is irrelevant. Although on that same note.....3 sick days off in 3 mths???? That seems like a lot right off the bat. Good luck with everything. Hopefully the next provider is a way better experiences for you!!

[Suzie_Homemaker]

Based on what you say, I think you totally right to pull your child. If anyone has any concerns about their child's carer, I strongly believe it the only option.

That said, a contract is a legal document. I think wise to double check the exact wording so you not leaving yourself open to legal action. I know it suck. I know it bitter pill to swallow. But you must protect self and own credit rating which would be affected if judgement against you.

I agree - if her contract not specifically say that you must pay all leave on termination, then don't.

Also, I agree. Her 3 days vacation from before not counted as vacation days. Again, this come down to wording on contract. I have 10 personal days - that how it worded. So if I was sick and had unused personal days, I would be paid when sick but if I had taken 10 days vacation, then my personal days all used up. Just make sure cover self.

My son is contract lawyer and he always telling me that if I have contract issue, put it in writing. Be clear what you not agreeing with, why, and what you intend doing. So, if you look at contract tonight and see that it not saying all 10 days owed, then e-mail and say that the contract does not say that, you only obligated to give notice of 2 weeks which you abided by and you not paying the rest.

Good luck.

[CW888]

Well regardless of the reasons as to why your leaving you'll have to abide by the contract. Which you said you were so that's great. Get your husband to bring the contract to her and ask her for clarification on what is to be paid. Then pay then wipe your hands clean and move on. Please please please don't let this bad provider tint your home daycare views. Tons out there that are way better! Best lesson here is go with your gut feeling. You said your hubby didn't like her from the ghetto so you should've listened to him in the beginning. (Don't tell him I said that ;) ). sick days can be used for anything in a home daycare setting. It can be for when the provider is sick, when her children are sick, when she needs a recharge day or when she has an apt. So the fact that she wasn't sick is irrelevant. Although on that same note.....3 sick days off in 3 mths???? That seems like a lot right off the bat. Good luck with everything. Hopefully the next provider is a way better experiences for you!!

Actually, I told my husband he was right and it's my fault for not interviewing more providers. We knew a very good one on the same street but she couldn't take my son in. Honestly she seemed nice during the interview, but when my husband dealt with her afterwards he had concerns and I thought she was just having a bad day...I was happy to deal with her until she got angry at me. Then I understood what my husband had to deal with before.

Honestly, we've been resonable all along. We paid her on time, every week, we paid her stats holidays, everytime she called to say my son has a fever, we picked him up. Another time he had scarlet fever, we kept him home for 3 days even though he wasn't contagious anymore. Once she called because my son was too cranky and she was having a hard time. In total, my husband and I had to take almost 2 weeks during those 3 months to look after my son. I understand when a child is sick, we don't have a choice, but it happened so many times we started to think that she was trying to find excuses to not look after him. Once home after we picked him up, he would be totally fine. If I tell her he's teething, she would call within the next few hours to say he's too cranky, not sleeping, etc and to come pick him up.

My husband always give her the cheque on a Friday morning for the next week, while other parents give the cheque in the afternoon. One time he forgot, she asked for her cheque in a way that didn't go well with my husband. Like she didn't even give him a chance to give it to her in the afternoon. My husband said to me: "she gives the impression that money is more important to her than providing daycare". There were times when my husband forgot his cheque book and had to go back home to get it so as not to upset her. I thought when I gave her the notice it would go so bad, I was prepared to look after my son for the whole notice period and pay her the 3 weeks.

[CW888]

Based on what you say, I think you totally right to pull your child. If anyone has any concerns about their child's carer, I strongly believe it the only option.

That said, a contract is a legal document. I think wise to double check the exact wording so you not leaving yourself open to legal action. I know it suck. I know it bitter pill to swallow. But you must protect self and own credit rating which would be affected if judgement against you.

I agree - if her contract not specifically say that you must pay all leave on termination, then don't.

Also, I agree. Her 3 days vacation from before not counted as vacation days. Again, this come down to wording on contract. I have 10 personal days - that how it worded. So if I was sick and had unused personal days, I would be paid when sick but if I had taken 10 days vacation, then my personal days all used up. Just make sure cover self.



Well she didn't use it for sick days which is why I thought it was not right to take it off her sick days. One day she used it for a a day out and she told us at the time to take it off her holidays. The other 2 days, no reason was given, just that she couldn't look after my son on these days. I will ask her if one the 2 days she had to attend to her sick child, if she says yes, then pay her for that day?

I'm waiting to hear from my husband regarding the contract. Hopefully he was able to take a look at it. We didn't get a copy from her after she signed it and the copy we made before signing was lost during our house move.

[3rdtimesacharm]

I'm waiting to hear from my husband regarding the contract. Hopefully he was able to take a look at it. We didn't get a copy from her after she signed it and the copy we made before signing was lost during our house move.

Correct me if I'm wrong, but I believe she MUST provide you with a contact that is signed by BOTH parties for it to be considered legal and binding.
It sounds
like you have dealt with more than your share fair of Crap from this provider and I would not be paying anymore than you already have. You sound like very reasonable clients and she should not be paid for what she is demanding.

[Suzie_Homemaker]

Based on all you say, she seem not professional, from one side of story. I think she unlikely to take to court unless very brazen person. Since you not have a signed copy, that is also poor practice.

She not sound very reliable at all. It sound like she already had three day off which you paid for that come from her leave allowance.

I just talked to my son quick on telephone to ask him what he think.

He say if you not got copy of contract, e-mail her and ask her to send you copy. If she above board, he said she will send it. If her contract wishy-washy, she likely fob off and not send. Once you have contract, you then be able to see if it clear that these 10 days must be paid in full even if only using her service for short time. If it not clear as day, he say, let her sue you.

He say it will be Small Claim Court. That it less formal and Judge is able apply common sense not just strict letter of law. Judge has some leeway to determine what is fair and to see if contract is clear enough.

If she decide to take action, she will have pay filing fee. My son say this amount is about $100 depend on which province you in but should be easy to find on-line amount. She will only get fee back if Judge agree with her. But if she not willing to send you contract, a Judge will not be happy with that because you not able to check facts for self. If you request contract and are denied, that work in your favour because you trying to check information and she not giving what you need to do that. If her contract clear as day, she will have no issue in sending it to you.

My son say even if she does file, you will get served all paperwork before court case. You can then decide if she has enough proof to win and if you think she will, you can just settle before court date, and no judgement then made, and nothing to affect negative your credit rating.



I really sorry you have this situation.

[mickyc]

You sound like a very reasonable person. I agree with everything Suzie says. Ask for a copy of contract. If she can prove that's what it says then you are required to pay. If she will not provide copy then do not pay until she proves it. My guess is it isn't clearly written the way she is telling you but who knows. I know when I started my contract was missing a few things. As things came up I learned very quickly what needed to be added. She might very well think that you are obligated to pay but unless it is in the contract clearly stated she has no leg to stand on.

[Suzie_Homemaker]

Also my son say, do not talk on telephone. You not able prove anything said. Make sure all communicates now in writing on e-mail or textings so you have paper trail. I forgot that bit information.

As a mother, I also think if you able to not send son for rest of notice period, it might be good idea. If she not able to be professional with reliables or tone when she not happy, then not put your child in situation where she might be mean. That horrible thing to think about but I not think I would risk it if my child.

[babydom]

Yes. Do all communication THROUGH EMAIL. U need a paper trail and evidence. If she calls let it go to the answering machine and then response by text or email. Also agree do not pay anything until she SHOWS you the contract and what it says.

[CW888]

Thanks for all your advice. It's very unfortunate that things have turned out like this.
She doesn't email. All the emails I have sent her before, she always called, and never replied by email.
I will tell my husband to record all conversations from now on as he's the one dealing with her now. I've been worried about my son all day and I have the constant vision of him being left to cry.

I wish I could have a provider whom we could trust and rely on. We are fairly new in the city and we couldn't get recommendations as we don't have a lot of friends. Thankfully my in-laws will be here tomorrow.

[Suzie_Homemaker]

She doesn't email. All the emails I have sent her before, she always called, and never replied by email.
That okay. You just send e-mail and if she call to reply, let answer phone pick up and keep the message. You just not speak direct to her because then you not able prove what was said. But your e-mail and her recorded reply is proof of conversation.

Before recording conversation, you have check laws in your province. Some allow recording as long as one side permits - that could be your husband permitting recording he making. But some province not allow recording without both people agree - that why sometimes when you call companies the message say "recorded for training and something purposes" because they then have informed both side and by continue with call, the other person is consenting to being recorded.

This horrible situation. I hope you know that most provider not like this. Yes, we in business for the money like all adult to pay bills but most of us do care about the children too (maybe too much sometime) and most of us value good client and work to keep them.

Where are you located?

Maybe provider on here in your area and you can check out their posting history to see mindset better. Maybe someone here be able recommend too. I in PEI and good network of other carer and we refer people all time when we not have spacings.

[CW888]

My husband asked to see the contract and she said there was no need and to see ourselves how much to pay her for her holidays. When my husband asked her is she was expecting a week vacation, she remained silent.

I'm frustrated because she's been avoiding the contract ever since I mentioned on the phone that I would like to see it. My guess is that she doesn't want us to see it because it doesn't say in it we have to pay her.
I have a feeling I will never see a copy of the contract.

[babydom]

Ok. So either say u will get paid when we see the contract. If she wants her money she'll show it. Or if she's saying pay whatever u think. Then do that. Pay her just a day even. She said to pay what YOU think. So that's what you think. If she argues and wants more. Say certainly as soon as I see the contract. What area are in? Please don't bring your son back there this wk!!

[CW888]

Ok. So either say u will get paid when we see the contract. If she wants her money she'll show it. Or if she's saying pay whatever u think. Then do that. Pay her just a day even. She said to pay what YOU think. So that's what you think. If she argues and wants more. Say certainly as soon as I see the contract. What area are in? Please don't bring your son back there this wk!!

I'm in Ottawa. Unfortunately I have to send him there tomorrow. I can't take any more days off work, I just went back from mat leave. My husband has his own business and is quite busy too. My in-laws will be here tomorrow afternoon from a long haul flight and I would feel really bad to have them look after my son when they just landed and jet lagged. My husband and I agreed to make tomorrow his last day. I can try asking to leave early tomorrow from work but I have already taken so many days to look after him. I've only been back to work for 3 months and I don't want to get into trouble at work.

My husband will ask for a copy of the contract again tomorrow.

Suzie: she doesn't leave messages either. She would call a few times until we pick up or talk to us when she sees us. I will check regarding recording conversations. Thanks for pointing this out.

[babydom]

Any chance it's west Ottawa? I can take him :)

[Suzie_Homemaker]

My son contract lawyer. He said you are legally entitled to a copy of any contract. The a contract is only valid if both sides sign their agreement. If she not giving contract then only reason is 1) This full year pay of leave not in her contract or 2
) She has lost the contract which means she has nothing to enforce.

He say if she has change of heart and provides copy, make sure it is signed copy, not a blank contract she could have written this evening. Without your signatures, it not worth anything.

My son advised to tell here straight and direct -
We have sought legal advice regarding this matter. Please be advised that we will not be paying your annual leave for a full year unless you produce a signed contract where we agreed to do so. We will not be discussing this further.



He said don't pay it.

He said only pay what you 100% know you owe which is likely just fees for her notice period. Most people charge for days reserved for a child so fees are due whether or not child is present. If hers set up that way, just pay for the notice period. If her fees set up so you only pay for care on days attend, then my son said don't pay her a dime more. Take child out of her care and be done with her.

She is playing you for fools because she cross. If it really was in contract, she would shove under nose quick as can be, to prove herself right and you wrong.

She not going to sue because it not there.



I have a feeling I will never see a copy of the contract.And without it, it unreasonable to expect you to abide by terms just on her say so and your memory.

She playing games. Leave her to play on her own. If she wants this extra money, it on her to prove she entitled to it.

[BlueRose]

...................

[CW888]

Thanks Suzie, I really appreciate getting your son involved to advice us on this matter. We suspect it's not in her contract that we have to pay her 1-2 weeks upon termination. I only remember she gets 10 paid days per year, so basically, after 3 months, we have to pay her 2.5 days and she already took 3 days. We don't owe her any paid vacation.
We have already paid for the notice period, ending this Friday. I guess if it really was in her contract that we have to pay her 1 week or 2 upon termination, then she would have insisted and not say it's up to us. I believe she is taking chances to get paid when she doesn't really deserve it.

Anyway, it looks very unprofessional to me. She could simply admit she was in the wrong and tell us we don't owe her anything, then amend her contract for future clients.

If my husband fails to see the contract tomorrow, then tomorrow will be my son's last day and we don't give her any more money.

Babydom: I'm in west ottawa, I'll pvt msg you :)

[babydom]

Awesome! I don't see the message yet!

[Dovey40]

I dont think paying for a providers vacation is appropriate. If they close you should have to pay. Holidays on the calendar are different like christmas day easter and so on. I dont mind paying for those days. Unless her contract says 10 days of paid vacation to be paid by each client yearly or at the end of their contract Id say she doesnt have a leg to stand on. If it just says 10 days of vacation then you pay for what ever she took while you were in her service. I would clearly write this out to her so she understands her contract has a loop hole and she needs to address that before sending out new contracts

[bluebirdfollower]

Original poster had me thinking this provider was in the wrong until I read the comment that said that you were afraid she was going to slap you. Really? Then why did you continue to bring your child to her and put your child in a harmful situation?

I also find it very rude when women try to get their husbands to intimidate providers into getting what they want. Everyone is reading one side of the story and it shocks me that people are siding with this women.