O Reg 398/09 sets out transitional rules for the application of the termination and severance provisions to assignment employees under Part XVIII.1 of the Employment Standards Act, 2000. While most of the regulation is now of historical interest only, it is important to note that the regulation provides that time on lay-off prior to November 6, 2009 is excluded for the purposes of determining when a termination/severance occurs under Part XV but clarifies that time employed prior to November 6, 2009 is included when determining entitlements under Part XV.

Section 1 – Definition

O Reg 398/09 is a defined industry regulation for the temporary help agency industry.

Section 2 – Scope

Section 2 provides that the scope of the regulation is limited to temporary help agencies and their assignment employees. The terms “temporary help agency” and “assignment employee” are defined in ESA Part I, s. 1(1).

Section 3 – Transitional terms and conditions of employment

Section 3 states that the regulation sets out transitional terms and conditions for applying Part XVIII.1 of the Employment Standards Act, 2000.

Section 4 – Determination of temporary lay-off

Section 4 provides that for the purposes of defining a temporary lay-off in s. 56(2), only a lay-off or part of a lay-off that occurs after November 5, 2009 is to be taken into account. As a result, only weeks of lay-off that commence on or after November 6, 2009 are counted for the purposes of determining whether a lay-off exceeds a period of temporary lay-off, thereby triggering a termination under s. 56(1)(c).

Similarly, for the purposes of the 20-consecutive week period or 52-consecutive week period within which more than 13 or 35 weeks or more of lay-off respectively must fall, only those weeks that begin on or after November 6, 2009 are taken into account.

Section 5 – Deemed termination date

Section 5 clarifies that for the purposes of s. 56(5), in cases where a layoff commenced prior to November 6, 2009, the deemed termination date will be November 6, 2009.

Section 56(5) of the Employment Standards Act, 2000 provides that where a termination is triggered because of a lay-off that exceeds a period of temporary lay-off, the employment is deemed to have been terminated on the first day of the lay-off.

As a result, if a lay-off commenced prior to November 6, 2009 and the number of weeks of lay-off that occurred on or after November 6, 2009 are sufficient to trigger a termination in accordance with s. 56(1)(c) (i.e., more than 13 weeks in a period of 20 consecutive weeks or 35 weeks in a period 52 consecutive weeks) the deemed termination date will be November 6, 2009 rather than the first day of the lay-off.

Section 6 – Mass termination provisions, notice

Section 6 provides that with respect to applying the mass notice provisions to assignment employees, the four-week periods within which the 50 or more terminations must occur in order to trigger mass notice entitlements must end before November 6, 2009 or begin on or after November 6, 2009.

As a result of this section and paragraphs 4.1 through 4.3 of s. 74.11, s. 58(1) of the Employment Standards Act, 2000 and s. 3(1) of O Reg. 288/01 would apply to determine the mass notice entitlements of assignment employees if they were one of at least 50 employees terminated in a four-week period ending before November 6, 2009, assuming they were not exempt from notice because they were an "elect to work" employee. Paragraphs 4.2 and 4.3 of s. 74.11 would apply to determine the mass notice entitlements of assignment employees if they were terminated in a four-week period beginning on or after November 6, 2009. For a discussion of how mass notice entitlements are triggered pursuant to s. 58(1) of the Act see ESA Part XV, s. 58. For a discussion of how mass notice entitlements are triggered pursuant to paragraphs 4.2 and 4.3 of s. 74.11, see ESA Part XVIII.1, s. 74.11.

Section 7 – Severance

Severance - s. 7(1)

Subsection 7(1) provides that for the purposes of determining whether a severance of employment has been triggered in accordance with s. 63(1)(c), only a lay-off or part of a lay-off that occurs after November 5, 2009 is to be taken into account. Section 63(1)(c) defines a severance as occurring when an employer lays an employee off for 35 weeks or more in any period of 52 consecutive weeks. Similarly, for the purposes of the 52-consecutive week period within which the 35 weeks of lay-off must fall, only those weeks that begin on or after November 6, 2009 are taken into account.

Section 7(2)

Subsection 7(2) provides that for the purposes of determining whether a severance has been triggered in accordance with s. 63(1)(d), only a lay-off that occurs after November 5, 2009 is to be taken into account. Section 63(1)(d) defines a severance as occurring when an employee lays an employee off because of a permanent discontinuance of all of the employer’s business at an establishment.

Section 7(3)

Finally, s. 7(3) provides that where a severance is triggered under s. 63(1)(e), only a notice of termination given after November 5, 2009 is to be taken into account. Section 63(1)(e) defines a severance as occurring when an employer gives an employee notice of termination as required under s. 57 or s. 58 of the Employment Standards Act, 2000 and the employee resigns, giving the employer at least two weeks' written notice of the resignation, with such notice to take effect during the statutory notice period.

Section 8 – Length of employment

Length of employment - s. 8(1)

Subsection 8(1) clarifies that nothing in this regulation can be construed to exclude time spent with an agency prior to November 6, 2009 for the purposes of determining entitlements under Part XV that vary with or are dependent on how long an assignment employee has been employed by a temporary help agency.

Section 8(2)

Subsection 8(2) states that as a result, references to "period of employment", "continuous employment" or "employment, whether or not continuous and whether or not active" and references to "number of years or months of employment" in Part XV will include employment with an agency prior to November 6, 2009.