The intent of the provisions found in Part XVIII.1 of the Employment Standards Act, 2000 is to set out specific obligations and prohibitions relating to temporary help agencies and clients of such agencies and specific rights of assignment employees (and in some cases prospective assignment employees) of temporary help agencies.

These provisions clarify the application of the ESA 2000 public holiday and termination and severance provisions within the context of the temporary help agency/assignment employee employment relationship. Those provisions, particularly those aspects dealing with the concept of lay-off and regular work weeks are difficult to apply where the employment relationship is based upon an agreement to find assignments to perform work and where such work is not performed for the employer directly but for a third party, i.e., the client of a temporary help agency. The modifications ensure that certain rights afforded to other employees are similarly afforded to assignment employees.

These provisions were also intended to extend the anti-reprisal protections for assignment employees by imposing prohibitions against reprisal on agency clients for whom the assignment employee was performing work. Previously, agency clients could, for example, terminate the assignment of any assignment employee for attempting to exercise rights to refuse excess hours of work while on assignment, without any repercussions under the reprisal provisions found in s. 74 of the Act, because the client was not the employee's employer. In such cases, an assignment employee was effectively unable to exercise his or her rights under the Act without protection from reprisal because the reprisal was effected by someone other than the assignment employee's employer.

Additionally, the provisions imposing a proportional liability for certain unpaid wages of the agency's assignment employees on clients of agencies (agencies as the employer remain liable for the full amount) are intended to reflect the fact that in general, a client benefits from the work of the assignment employee in proportion to the number of hours that the employee worked for the client.

The provisions related to prohibitions against fees and restrictions on entering into employment relationships were intended to reduce barriers to assignment employees and prospective assignment employees finding employment with clients of the agencies.

Section 74.1 – Interpretation – Repealed

Section 74.2 - Application

These sections provides that Part XVIII.1 does not apply to assignment employees who are assigned to provide homemaking, personal support and/ or professional services as defined in the Home Care and Community Services Act, 1994 (“HCCSA”) if the assignment is made under a contract between a) the assignment employee or b) his or her employer and a community care access corporation within the meaning of the Community Care Access Corporations Act, 2001, SO 2001, c 33. Clause (a) is meant to cover the situation in which the relationship between an individual providing services referred to in s. 74.2 and a community care access corporation is that of assignment employee and temporary help agency; in other words, the community care access corporation functions as a temporary help agency vis-á-vis the individual. Clause (b) is meant to cover the situation in which a temporary help agency has a contract with a community care access corporation to provide the services of employees and the agency assigns an assignment employee to perform work for the community care access corporation.

The definitions of homemaking services, personal support services and professional services contained in ss. 2(5) - (7) of the HCCSA are set out below:

In addition to providing services as described above, the assignment employee or their employer must have a contract for the assignment with a "community care access corporation" continued under the Community Care Access Corporations Act, 2001 or incorporated by regulation made under s. 2(4) of the Community Care Access Corporations Act, 2001.

Section 74.2.1 – Assignment employees

This sections provides that Part XVIII.1 does not apply to assignment employees who are assigned to provide homemaking, personal support and professional services as defined in the HCCSA if the assignment is made under a contract between a local health integration network (“LHIN”) and either the assignment employee or their employer.

Clause (a) is meant to cover the situation in which the relationship between an individual providing services referred to in s. 74.2.1 and a LHIN is that of assignment employee and temporary help agency; in other words, the LHIN functions as a temporary help agency vis-á-vis the individual. Clause (b) is meant to cover the situation in which a temporary help agency has a contract with a LHIN to provide the services of employees and the agency assigns an assignment employee to perform work for the LHIN.

The definitions of homemaking services, personal support services and professional services contained in ss. 2(5) - (7) of the HCCSA are set out below:

In addition to providing services as described above, the assignment employee or their employer must have a contract for the assignment with a LHIN as defined in the Local Health System Integration Act, 2006, SO 2006, c 4 (“LHSIA”).  Section 2(1) of the LHSIA defines a local health integration network as follows:

“local health integration network” means a corporation that is continued under subsection 3 (1) or incorporated by regulation under subsection 3 (3);

Section 3(1) of the LHSIA provides a list of corporations continued as LHINS:

  • Central Local Health Integration Network;
  • Central East Local Health Integration Network;
  • Central West Local Health Integration Network;
  • Champlain Local Health Integration Network;
  • Erie St. Clair Local Health Integration Network;
  • Hamilton Niagara Haldimand Brant Local Health Integration Network;
  • Mississauga Halton Local Health Integration Network;
  • North East Local Health Integration Network;
  • North Simcoe Muskoka Local Health Integration Network;
  • North West Local Health Integration Network;
  • South East Local Health Integration Network;
  • South West Local Health Integration Network;
  • Toronto Central Local Health Integration Network; and
  • Waterloo Wellington Local Health Integration Network.

Note that this list is not exhaustive and that other LHINs may be incorporated pursuant to regulation as per s. 3(3) of the LHSIA.

Section 74.3 - Employment relationship

This section provides that an employment relationship exists between a temporary help agency and a person at the point that they agree (whether or not in writing) that the agency will assign or attempt to assign the person to perform work on a temporary basis for clients or potential clients. It is the existence of such an agreement that establishes the employment relationship.

Whether there is or is not such an agreement is a question of fact. Arguably, if a temporary help agency is simply receiving unsolicited resumes that have been forwarded to the agency, this is not, on its own, evidence that the agency has agreed to assign or attempt to assign the individual to perform work on a temporary basis for clients.

An agreement in writing to that effect would clearly demonstrate that an employment relationship existed between the parties but the agency's agreement may also be expressed by the actions of the agency rather than in writing. For example, agreement would be demonstrated by an attempt by the agency to match the individual who had submitted a resume with a client.

A person does not have to be assigned to perform work for a client of the agency in order for there to be an employment relationship with the agency. The employment relationship is established by the agreement between the parties and not whether the employee is assigned to perform work for a client of the agency. As a result, it is not necessary for an employee's first assignment (if any) to begin on the date of hire. On this point see the discussion of ESA Part XVIII.1, s. 74.4(3).

Section 74.4 - Work assignment

Work assignment - s. 74.4(1)

This section provides that an assignment employee of a temporary help agency is assigned to perform work for a client (i.e., is on a work assignment) if the agency arranged for the employee to perform work for the client on a temporary basis and the employee is performing the work. As noted in the definition of assignment employee in ESA Part I, s. 1, the Program's position is that "work on a temporary basis" would obviously include a short term assignment but would also include long term or open ended placements with a client. The work is considered to be temporary because there is no permanent placement with the client; the assignment employee continues to be the employee of the agency and not the client throughout the period of the assignment.

In addition, pursuant to ESA Part I, s. 1(2), an assignment employee is assigned to perform work for a client if the employee is assigned to receive training from the client for the purposes of performing work for that client.

Same - s. 74.4(2)

This provision clarifies that a work assignment begins on the first day the employee performs work pursuant to the assignment and ends when the term of the assignment ends (where a term of the assignment has been established) or alternatively, when the assignment is ended by the agency, the assignment employee or the client.

For example, an assignment employee accepts an offer of a work assignment from the agency on June 15 and commences performing work for the client under that assignment on June 18. If the terms of the assignment stipulated that the assignment ended on September 15, the assignment would begin June 18 and end on September 15, assuming the employee actually ceased performing work for the client of the agency on that day. If however, the client terminated the assignment on August 21, the assignment would end on that earlier date. Alternatively, if the employee continued to perform work for the client after September 15, e.g., to November 1, the assignment would end on November 1.

Same - s. 74.4(3)

This provision clarifies that an assignment employee's employment relationship with a temporary help agency is not ended because the employee is, or is not, on an assignment to perform temporary work for a client of the agency.

The employment relationship is established pursuant to ESA Part XVIII.1, s. 74.3 by a temporary help agency and a person having agreed that the agency will assign or will attempt to assign the person to perform work for a client or potential clients on a temporary basis.

Section 74.4(3) clarifies that being, or not being, on assignment is not the determining factor in ending the employment relationship. Once the employment relationship is established, it will continue whether or not the employee is on assignment and despite gaps between assignments unless the employment relationship is terminated and/or severed.

It should be noted however that a termination or severance of the employment relationship may be triggered by a lay-off lasting a certain number of weeks within a specified period of consecutive weeks. See the discussion at ESA Part XVIII.1, s. 74.11.

Same - s. 74.4(4)

This subsection clarifies that an assignment employee is not on a work assignment simply because the agency has provided the client with the assignment employee's resume, arranged for the client to interview the employee or otherwise introduced the client to the assignment employee.

Although the agency may do any or all of these things, unless the agency has arranged for the employee to perform work for a client on a temporary basis and the employee is performing such work, the assignment employee is not on assignment per s. 74.4(1).

Section 74.4.1 - Agency to keep records re: work for client

Agency to keep records re work for client - s. 74.4.1(1)

This provision requires temporary help agencies to maintain records of the hours worked by their assignment employees in each day and week for each client of the agency and retain a copy of any written notice provided to an assignment employee under ESA s. 74.10.1(1). Corresponding client record keeping obligations with respect to maintaining records of hours worked in each day and each week are set out in s. 74.4.2.

The record keeping obligations in clause (a) were added because of the  client joint and several liability for certain unpaid wages of the agency's assignment employees, which is based upon the proportional number of hours worked for each client in any particular pay period, introduced by the Stronger Workplaces for a Stronger Economy Act, 2014, SO 2014, c 10. The record keeping obligations in clause (b) were added because of the new provision requiring notice of termination of assignment introduced by the Fair Workplaces Better Jobs Act, 2017. See the discussion at ESA Part XVIII.1, s. 74.18 and ESA Part XVIII.1, s.74.10.1.

For a discussion of an employer's general obligations to make and retain records with respect to hours of work see ESA Part VI. Note that there is no provision in s. 74.4.1 that corresponds to the exception regarding records of hours for salaried employees as set out in ESA Part VI, s. 15(3).

Retention of records - s. 74.4.1(2)

Under this section, a temporary help agency must retain the records required under s. 74.4.1(1) or arrange for another person to retain them for three years. The retention period is the same as the three year period for retaining records regarding hours of work under ESA Part VI, s. 15(5) paragraph 3.

Availability - s. 74.4.1(3)

If the agency makes arrangements for another person, such as a bookkeeper or accountant, to retain the records made under s. 74.4.1(1), it is the agency's responsibility to ensure that the records are readily available for inspection by an employment standards officer. This provision is similar to ESA Part VI, s. 16, which requires that records that must be retained under ESA Part VI, ss. 15 and 15.1.

Section 74.4.2 - Client to keep records re: work for client

Client to keep records re work for client – s. 74.4.2(1)

The Stronger Workplaces for a Stronger Economy Act, 2014 added this provision to the Employment Standards Act, 2000.

This provision requires clients of temporary help agencies to maintain records of the hours of work performed for the client, by each assignment employee of the agency, in each day and each week. Corresponding temporary help agency record keeping obligations are set out in ESA Part XVIII.1, s. 74.4.1.

These new record keeping obligations were added because of the joint and several liability imposed on clients for certain unpaid wages owing to assignment employees that came into force on November 20, 2015 pursuant to ESA Part XVIII.1, s. 74.18.

Client to keep records re work for client – s. 74.4.2(2)

Under this section, a client of a temporary help agency must retain the records required under s. 74.4.2(1) or arrange for another person to retain them for three years. The retention period is the same as the three year period for retaining records regarding hours of work under paragraph 3 of ESA Part VI, s. 15(5).

Availability – s. 74.4.2(3)

If the client makes arrangements for another person, such as a bookkeeper or accountant, to retain the records made under s. 74.4.2(1), it is the client's responsibility to ensure that the records are readily available for inspection by an employment standards officer. This provision is similar to ESA Part VI, s. 16, which requires that records that must be retained under ESA Part VI, s. 15 and s. 15.1 and must be readily available for inspection.

Section 74.5 - Information re agency

Information re agency - s. 74.5(1)

This section imposes an obligation on a temporary help agency to provide information about the agency to its assignment employee as soon as possible after entering into an employment relationship with him or her as an assignment employee. The agency must provide, in writing, the legal name and any operating name or business name if different than the legal name. The agency is also required to provide an address, telephone number and at least one contact name for the agency.

What is "as soon as possible" will depend upon the circumstances.

This section requires that the information be provided to the assignment employee "in writing". Program policy is that an electronic agreement may constitute an agreement "in writing" under the Employment Standards Act, 2000. For further discussion of "agreements in writing" see ESA Part I, s. 1. As a consequence, the Program's position is that an agency would be in compliance with this section if the information in s. 74.5(1) was provided in an electronic document. It may therefore be provided by electronic mail, if the employer ensures the employee has convenient access to e-mail and can easily print the document. In addition, even though it is not sent personally in any format to the employee, the Program takes the position that the agency will be complying with this requirement if the employer ensures the employee has convenient access to an electronic version of the document (and knows how to access it) and a printer (and knows how to use it). In the latter case, simply providing an employee with a website address would be insufficient to meet the requirement to provide the information in writing.

Transition - s. 74.5(2)

Section 74.5(2) requires an agency to provide the information in s. 74.5(1) to those of its assignment employees already in the agency's employ on the day the amendments made under the Employment Standards Amendment Act (Temporary Help Agencies), 2009, SO 2009, c 9 came into force (November 6, 2009). Such employees must be provided with the information (in writing), as soon as possible after November 6, 2009.

What is "as soon as possible" will depend upon the circumstances.

Because the intent of this provision is to ensure that assignment employees who were hired before s. 74.5(1) came into force, receive the information about the agency specified in that provision, the Program's position is that an agency that provided this information prior to November 6, 2009 would be in compliance with s. 74.5(2) so long as the information is still accurate on November 6, 2009 and the employee still has a copy of it.

Section 74.6 - Information re assignment

Information re assignment - s. 74.6(1)

This section imposes an obligation on a temporary help agency when offering a work assignment with a client to an assignment employee, to provide certain information about the client and the assignment to the assignment employee. In accordance with s. 74.6(2) the information may initially be provided orally, but must subsequently be provided in writing as soon as possible after offering the assignment.

In accordance with s. 74.6(1), the agency must provide the client's legal name and any operating name or business name if different than the legal name. The agency is also required to provide an address, telephone number and at least one contact name for the client.

In addition, the agency must provide information about the assignment itself as follows:

  • Hourly wage rate or other wage rate or commission as applicable and benefits associated with the assignment;
  • Hours of work associated with the assignment;
    • Program policy is that this would include both daily and weekly hours of work.
  • General description of the work to be performed on the assignment;
  • Pay period and pay day as established by the agency in accordance with s. 11(1) of the ESA – see ESA Part V s. 11 for more information regarding the establishment of a pay day and pay period; and 
  • The estimated term of the assignment if that information is available when the offer is made.

Same - s. 74.6(2)

This subsection must be read in conjunction with s. 74.6(1), which lists information regarding the client and work assignment that must be provided to an assignment employee at the time the work assignment is offered. Section 74.6(2) provides that if the information is provided orally, it must subsequently be provided, in writing, as soon as possible after the offer was made. Note that the requirement to provide this information in writing is not relieved even if the assignment employee refused the offer after being provided with the information orally.

What is "as soon as possible" will depend upon the circumstances.

This section requires that the information be provided to the assignment employee "in writing". Program policy is that an electronic agreement may constitute an agreement "in writing" under the Employment Standards Act, 2000. For further discussion of "agreements in writing" see ESA Part I, s. 1. As a consequence, the Program's position is that an agency would be in compliance with this section if the information in s. 74.6(1) was provided in an electronic document. It may therefore be provided by electronic mail, if the employer ensures the employee has convenient access to e-mail and can easily print the document. In addition, even though it is not sent personally in any format to the employee, the Program takes the position that the agency will be complying with this requirement if the employer ensures the employee has convenient access to an electronic version of the document (and knows how to access it) and a printer (and knows how to use it). In the latter case, simply providing an employee with a website address would be insufficient to meet the requirement to provide the information in writing.

Transition - s. 74.6(3)

Section 74.6(3) requires that an agency provide the information required by s. 74.6(1) to those of its assignment employees who were offered or who were on a work assignment on November 6, 2009, the day the amendments made under the Employment Standards Amendment Act (Temporary Help Agencies), 2009, SO 2009, c 9 came into force. Such employees must be provided with the information (in writing), as soon as possible after November 6, 2009.

Section 74.7 - Information, rights under this Act

Information, rights under this Act - s. 74.7(1)

Section 74.7(1) provides that the Director of Employment Standards shall prepare and publish a document that provides information about the rights and obligations of assignment employees, temporary help agencies and clients as the Director considers appropriate.

At the time of writing, the document prepared pursuant to this section is entitled "Your Employment Standards Rights: Temporary Help Agency Assignment Employees." The document is available from Publications Ontario or can be downloaded from the Ministry of Labour's website.

Same - s. 74.7(2)

This subsection provides that if the Director believes that the document published under s. 74.7(1) regarding rights and obligations under Part XVIII.1 of the Act is out of date, he or she will prepare and publish a new document.

Same - s. 74.7(3)

This section imposes an obligation on a temporary help agency to provide a copy of the most recent version of the document published by the Director under s. 74.7(1) to its assignment employee as soon as possible after the person becomes an assignment employee of the temporary help agency.

The employer may provide the document as a paper copy or electronically. If the document is made available by access to an internet database, the employer must ensure the employee has reasonable access to the database and a printer and knows how to use the computer and the printer. The document may also be sent to the employee by electronic mail although the employer will again be responsible for ensuring the employee has access to the means of making a paper copy.

What is "as soon as possible" will depend upon the circumstances.

Same - s. 74.7(4)

This section states that where the language of an assignment employee is a language other than English, the employer is required to inquire as to whether the Director has prepared a translation of the document published under s. 74.7(1) into that language. If a translation of the document into that language has been prepared, the agency is required to provide a copy of that translation together with the English version to the assignment employee.

Transition - s. 74.7(5)

Section 74.7(5) requires an agency to provide the document as required under s. 74.7(3) to those of its assignment employees already in the agency's employ on November 6, 2009, the day the amendments made under the Employment Standards Amendment Act (Temporary Help Agencies), 2009, SO 2009, c 9 came into force. Such employees must be provided with the most recent copy of the document published under s. 74.7(3) and if applicable, and if it is available at that time, a translation in accordance with s. 74.7(4), as soon as possible after November 6, 2009.

Section 74.8 – Prohibitions

Prohibitions – s. 74.8(1)

This section prohibits temporary help agencies (“THAs”) from:

  • Charging certain fees to assignment employees - paras. 1, 2, 3 and 5;
  • Charging certain fees to clients subject to the exception set out in s. 74.8(2) - para. 8;
  • Imposing restrictions on assignment employees with respect to entering into employment relationships with clients and vice versa - paras. 4 and 7;
  • Imposing restrictions on clients with respect to providing references for assignment employees - para. 6;
  • Charging any other fees or imposing any other restrictions that are prescribed by regulation as prohibited (none at time of writing) - paras. 9 and 10.

This section must also be read in conjunction with s. 74.8(4) which provides that references to assignment employee within this section include a prospective assignment employee. These prohibitions will therefore apply to prospective assignment employees where the circumstances or context would allow.

In addition, because the definition of employee in ESA Part I, s. 1 includes a person who was an employee, the prohibitions and restrictions in s. 74.8 would apply with respect to an individual who was previously an assignment employee of an agency. For example, an agency could not impose a restriction that would restrict a client of the agency from entering into an employment relationship with former employees of the agency or vice versa.

Note that where an agency contravenes certain provisions of s. 74.8, new order making powers within Part XVIII.1 are available in addition to the enforcement tools in ESA Part XXII and prosecution under ESA Part XXV. See ESA Part XVIII.1, s. 74.14 to s. 74.17.

Prohibited fees to assignment employees

Under paragraphs 1, 2, 3 and 5, agencies cannot charge fees to assignment employees in connection with becoming an assignment employee, obtaining work assignments, entering into an employment relationship with a client of the agency, or for assistance in preparing resumes or preparing for job interviews.

Fees in connection with becoming an assignment employee

Any fee associated with a person and an agency agreeing to enter into an employment relationship is prohibited under para. 1 of s. 74.8(1). An employment relationship is defined in the context of assignment employees and temporary help agencies under ESA Part XVIII.1, s. 74.3 as an agreement (whether or not in writing) that the agency will assign or attempt to assign the person to perform work on a temporary basis for clients or potential clients of the agency.

Because the prohibitions in s. 74.8 apply with respect to prospective assignment employees as well as assignment employees, the prohibition in para. 1 applies whether or not there is actually an employment relationship between the person and the agency when the fee is charged.

An agency would therefore be prohibited from charging a fee to a person when that person inquires about signing on with the agency for the purposes of the agency attempting to place them with clients for temporary work. An agency would be likewise prohibited from charging a fee for taking applications, interviewing, or otherwise considering a person for employment as an assignment employee.

Fees in connection with the agency assigning or attempting to assign work

Pursuant to paragraph 2, any fee charged to an assignment employee with respect to assigning or attempting to assign the employee to perform work on a temporary basis for clients is prohibited. For example, an agency would be prohibited from charging a fee to an assignment employee for sending them to interviews with clients for possible work assignments or when a work assignment was offered or accepted.

Fees in connection with assistance or instruction preparing resumes or for job interviews

Pursuant to paragraph 3, agencies are prohibited from charging assignment employees for any assistance or instruction with respect to preparing resumes or preparing for job interviews. Where such services are provided to assignment employees (whether optional or mandatory) they must therefore be provided free of charge.

Generally, an agency would not be prohibited from charging fees for services related to resume preparation and job interview preparation in relation to persons other than assignment employees. However, because s. 74.8(4) provides that references to assignment employees within s. 74.8 include prospective assignment employees, the fact no employment relationship exists between the person and the agency at the time the service is provided or the fee charged, is not the determining factor when considering whether the fee is prohibited. In such situations it would be necessary to determine whether the person was a prospective assignment employee - see the discussion regarding prospective assignment employees in s. 74.8(4).

Fees in connection with a client entering into employment relationship

Pursuant to paragraph 5, agencies are prohibited from charging any fees in connection with an assignment employee entering into an employment relationship with a client of the agency. As a result, where an assignment employee is offered a position as an employee of the client, they cannot be required to pay the agency any fee in connection with the offer or acceptance of that offer.

Prohibited fees to agency clients

Under paragraph 8, agencies cannot charge fees to a client of the agency in connection with the client entering into an employment relationship with an assignment employee, except as permitted under s. 74.8(2). The prohibition in para. 8 is similar to that in paragraph 5 except that the agency is prohibited in the latter case from charging the fees to an assignment employee in connection with entering into an employment relationship with a client of an agency.

Because s. 74.8(4) provides that references to assignment employees within s. 74.8 include prospective assignment employees, the prohibition against charging a fee also applies even though no employment relationship exists between the person and the agency at the time the client of the agency and the person (prospective assignment employee) enter into an employment relationship. See the discussion regarding prospective assignment employees in s. 74.8(4).

Prohibited restrictions with respect to assignment employees

Under paragraph 4, agencies are prohibited from restricting an assignment employee of the agency from entering into an employment relationship with a client of the agency. This provision prevents agencies from incorporating terms into an agreement with an assignment employee that would in any way prevent or restrict their ability to enter into an employment relationship with a client of the agency.

Prohibited restrictions with respect to agency clients

No restrictions on clients providing references

Pursuant to paragraph 6, agencies are prohibited from imposing any restrictions on a client that would restrict the client’s ability to provide an assignment employee of the agency with a reference. Whether the assignment employee was seeking employment with another client of the agency, another agency or an employer with no connection to the agency, the agency is prohibited from restricting the client’s ability to provide the assignment employee with a reference.

No restrictions on clients entering into employment relationships

Paragraph 7 prevents agencies from incorporating terms into an agreement with a client that would in any way prevent or restrict their ability to enter into an employment relationship with an assignment employee of the agency. It is the converse of the prohibition on restrictions on an assignment employee entering into an employment relationship with a client of an agency as set out in paragraph 4. This prohibition prevents an agency from restricting a client from hiring the agency’s assignment employees, whether or not such employees had ever been assigned to perform work for that client.

In addition, because s. 74.8(4) provides that references to assignment employees within s. 74.8 include prospective assignment employees, the prohibition in paragraph 7 applies to prohibit an agency from attempting to restrict a client from entering into an employment relationship with a prospective assignment employee; that is, where no employment relationship exists as yet between the person and the agency.

Prohibited fees and restrictions as prescribed by regulation

Paragraphs 9 and 10 prohibit fees and restrictions as prescribed by regulation. At the time of writing, no fees or restrictions were prescribed.

Exception, par. 8 of subs. (1) – s. 74.8(2)

Under para. 8 of s. 74.8(1), THAs are prohibited from charging fees to a client in connection with the client entering into an employment relationship with an assignment employee except as permitted under this subsection.

Subsection 74.8(2) states the agency may charge a fee to the client in the event the client enters into an employment relationship with the assignment employee, but only where an assignment employee has been assigned to perform work on a temporary basis for that client by the agency (and the employee has begun to perform the work) and the fee is charged within the six-month period beginning on the first day on which the employee began to perform work for the client.

The Program’s position is that under some circumstances, the fact that the fee is paid or collected outside the six-month period does not necessarily mean it is not permitted under s. 74.8(2). The question is, when was the fee charged?

For example, assume a contract clearly states that the client will be charged a particular fee, forthwith, if it hires an assignment employee within the six-month period beginning on the first day on which its assignment employee was assigned and began to perform work for the client. If the client does enter into an employment relationship with an assignment employee within that six-month period the fee may, depending on all the circumstances, be considered to have been charged at that time and may be permitted under s. 74.8(2), whether or not it was actually paid or collected within the six-month period.

If an assignment employee was assigned to perform work for a client and began performing the work on May 1, the agency could subsequently charge the client a fee for hiring that assignment employee directly, but only if the client hired the assignment employee before November 1 and the agency charged its fee within that same six-month period. The length of the original assignment and/or whether there was more than one assignment during that period is not relevant to the agency’s ability to charge the fee.

If an assignment employee had never been assigned to perform work for a particular client by the agency and was hired directly by that client, the exception in s. 74.8(2) would have no application and the agency would be prohibited pursuant to para. 8 of s. 74.8(1) from charging a fee to the client.

Note that ESA Part XVIII.1, s. 74.15 provides that if a temporary help agency charges a fee to a client in contravention of paragraph 8 or 9 of s. 74.8(1), the client may recover the amount of the fee in a court of competent jurisdiction.

Same – s. 74.8(3)

The six-month period during which the agency may charge a fee to a client runs from the first day that an assignment employee who is assigned by the agency to perform temporary work for the client begins to perform work for that client. The six-month period runs from that date regardless of the length of the first assignment or any subsequent assignments as well as the amount or timing of any work performed by the assignment employee.

For example, employee B was given an assignment by agency A to perform work on a temporary basis for client C commencing February 1, 2010 and ending December 1, 2010. This was the very first time employee B was ever assigned by agency A to perform work for client C. If B was reassigned to perform work for C in January 2011 and C chose to enter into an employment relationship directly with B in March 2011, A would be prohibited from charging C a fee for doing so. The six-month period during which the agency A was permitted to charge a fee ended six months after B first began to perform work for client C (i.e., the six-month period ended on July 31, 2010).

As another example, agency A assigns employee B to perform temporary work for the very first time with client C on February 1, 2010. The assignment was "part-time" (only 24 hours per week) and ended on February 26. Agency A did not assign B to perform work for client C again. On September 1, 2010, the client entered into an employment relationship directly with B. The agency could not charge C a fee for doing so because the six-month period during which the agency A was permitted to charge a fee ended six months after B first began to perform work for client C (i.e., it ended on July 31, 2010).

Again, the six-month period within which the agency could charge a fee begins on the date the employee is assigned and first begins to perform work for the client of the agency regardless of the duration of the first assignment and whether or not there were any subsequent assignments prior to the client and assignment employee entering into the employment relationship. The hours of work or amount of work associated with the first and any subsequent assignments are not a consideration in the timing of the six-month period.

Same – s. 74.8(4)

Under this subsection, references to assignment employee within s. 74.8 include a prospective assignment employee. As a result, the prohibitions against charging certain fees and prohibitions against imposing restrictions on clients and assignment employees from entering into employment relationships with one another, as well as restrictions that would prevent clients from providing references for assignment employees are also applicable as context or circumstances require, to prospective assignment employees.

Although ESA Part I, s. 1 defines assignment employee as an employee employed by a temporary help agency for the purpose of being assigned to perform work on temporary basis for clients of the agency, the ESA 2000 does not define prospective assignment employee.

It is the Program’s position that where an agency may consider, is considering or has considered entering into an employment relationship as defined in ESA Part XVIII.I, s. 74.3 with an individual, that individual will be considered a prospective assignment employee for the purposes of the prohibitions in s. 74.8.

Evidence that would support a determination that an agency may consider, is considering or has considered entering into an employment relationship with an individual could include:

  • Inviting an individual to fill out a job application or to leave a resume with the agency
  • Reviewing a resume or job application (whether solicited or not) in order to assess the individual’s suitability for employment with the agency
  • Inviting an individual to attend a job interview
  • Making an offer (whether in writing or orally) to enter into an employment relationship with the agency (i.e., for the purposes of assigning or attempting to assign the individual to perform work on a temporary basis for client(s) of the agency.)

As the effect of s. 74.8(4) is to extend the prohibitions in s. 74.8 in relation to prospective assignment employees, fees or restrictions could be charged to or imposed with respect to persons who were neither assignment employees nor prospective assignment employees. As a result, an agency could offer resume writing services or job interview services to persons other than assignment employees or prospective assignment employees and not be in violation of s. 74.8. However, whether an individual is a prospective assignment employee will depend upon whether the evidence shows that the agency intended to enter or considered entering into an employment relationship with the individual at the time the otherwise prohibited fee was charged or restriction imposed.

For example, an individual might seek assistance in preparing a resume from an agency that provides such services both independently and as part of its operation as a temporary help agency. If the individual paid a fee for the assistance received, the fee would not be prohibited if the individual was neither an assignment employee nor a prospective assignment employee. If the parties had not entered into an employment relationship as defined in ESA Part XVIII.1, s. 74.3 at that time, the individual would clearly not be an assignment employee. But, if the evidence showed that the agency’s intention was to hold the individual’s resume for the purposes of reviewing it and possibly offering an assignment to that individual at a later date, it would be open, depending upon all the other facts before the officer, for that officer to conclude that the individual was a prospective assignment employee at the time the fees had been charged and to issue an order under ESA Part XVIII.1, s. 74.14 to recover the prohibited fees.

Finally, as noted above, s. 74.8(4) will apply to prohibit charging certain fees and imposing certain restrictions with respect to prospective assignment employees in addition to assignment employees, as context or circumstances require. For example, the prohibition in para. 1 of s. 74.8(1) readily applies to prospective assignment employees as it prohibits fees being charged to an individual in connection with becoming an assignment employee. As a result, an agency would be prohibited from charging a fee for submitting an application for employment or a resume, or attending a job interview, regardless of whether or not the individual was ultimately offered or accepted an offer of employment.

On the other hand, the prohibition in paragraph 6 of s. 74.8(1) against restricting a client from providing a reference for an assignment employee of the agency would not under ordinary circumstances apply to prospective assignment employees. Presumably, in order for the client to be in a position to provide a reference, the individual would have to have been assigned by the agency to perform work for the client. Thus, the individual would have to be an assignment employee of the agency.

Section 74.9 - Void provisions

Void Provisions - s. 74.9(1)

This section provides that any provision in an agreement between a temporary help agency and an assignment employee that are inconsistent with s. 74.8 (e.g., charges a prohibited fee  as per paras. 1,2,3 or 5 of s. 74.8(1) or imposes a prohibited restriction as per para. 4 of s. 74.8(1) is void. Under s. 74.9(4), this provision also applies with respect to agreements between a temporary help agency and a "prospective assignment employee." See the discussion in ESA Part XVIII.1, s. 74.8(4).

Same - s. 74.9(2)

This section provides that any provision in an agreement between a temporary help agency and client that is inconsistent with s. 74.8 (e.g. charges a prohibited fee as per s. 74.8(1) para. 8 or imposes a prohibited restriction as per s. 74.8(1) paras. 6 or 7) is void.

Transition - s. 74.9(3)

Under this provision, terms of agreements between agencies and assignment employees or between agencies and their clients that are inconsistent with s. 74.8 are void, whether the agreement was entered into before the date these amendments to the Employment Standards Act, 2000 came into force (November 6, 2009) or after that date.

However, where such terms existed in an agreement prior to November 6, 2009 and fees were actually charged and/or restrictions imposed prior to that date; no order could issue under s. 74.14 with respect to those fees and no order could issue under s. 74.16 for losses suffered with respect to those restrictions as neither the fees nor the restrictions were prohibited until November 6, 2009.

Interpretation - s. 74.9(4)

Under this provision, the reference to "assignment employee" in subsection 74.9 includes a prospective assignment employee. As a result, a term in an agreement between an agency and a prospective assignment employee that, for example, required the prospective assignment employee to pay a fee to become an assignment employee of the agency, (e.g. entering into an agreement for the purposes of the agency assigning or attempting to assign the person to perform work for clients or potential clients of the agency), would be void. Such a term would be void regardless of whether the agreement was entered into before or after November 6, 2009, the date on which s. 74.9 came into force.

See the discussion of the term "prospective assignment employee" in ESA Part XVIII.1, s. 74.8(4).

Section 74.10 - Public holiday pay

Public holiday pay - s. 74.10(1)

Subsection 74.10(1) clarifies the application of s. 29(2.1) of the Act as it applies to most assignment employees of temporary help agencies, by providing that a lay-off for the purposes of that section means a day on which the assignment employee is not on an assignment to perform temporary work for a client of the agency. The provisions that clarify what constitutes a layoff for the purposes of determining entitlements to notice of termination/termination pay in lieu of notice and/or severance pay for assignment employees in s. 74.11 are not relevant when determining public holiday entitlements for assignment employees pursuant to s. 29(2.1).

Note that pursuant to s. 74.2, Part XVIII.1 of the Act (which includes s. 74.10(1)) does not apply to those assignment employees who provide professional services, personal support services or homemaking services as defined in the Long-Term Care Act, 1994, SO 1994, c 26 (renamed the Home Care and Community Services Act, 1994 as of July 1, 2010) if the assignment is made under a contract between the employee or his or her employer and a community care access corporation within the meaning of the Community Care Access Corporations Act, 2001, SO 2001, c 33. As a result, the application of s. 29(2.1) is not modified in respect of such employees by s. 74.10(1).

The Program's position is that a public holiday will be considered to fall on a day that is ordinarily a working day for an assignment employee only if the employee is on assignment and the holiday falls on a day that he or she would be working pursuant to the assignment (assuming there had been no holiday). In that case only, s. 26, 27 or 28 apply to determine the employee's public holiday entitlements. In all other cases, the employee's public holiday entitlements will be determined under s. 29 and 30.

Because public holiday entitlements can be affected by the timing of a termination of employment, it is important to note that subsection 74.4(3) provides that an assignment employee does not cease to be employed by the temporary help agency when he or she is assigned to perform work for an agency client (i.e., he or she is on assignment with a client) nor is his or her employment considered terminated by the agency merely because the assignment with a client has ended and the agency has not yet given a new assignment. A period of non-assignment will not in itself trigger a termination of the employment relationship, unless the weeks of non-assignment constitute weeks of lay-off under s. 74.11 and those weeks of lay-off go on longer than the period of "temporary lay-off".

This could be relevant to the application of s. 29(2.1) of the Act insofar as assignment employees are concerned. Subsection 29(2.1) provides that where a public holiday falls on a day that would not be a working day for an employee and the employee is on lay-off on that day, the employee is entitled to public holiday pay for that day but has no other entitlement under Part X. For purposes of s. 29(2.1), s. 74.10(1) of the Act provides that where an assignment employee is not on assignment on a day on which a public holiday falls, the assignment employee is considered to be on lay-off on that day. Note, however, that s. 29(2.2) provides that if an employee's employment has been terminated because of a lay-off lasting longer than a temporary lay-off, s. 29(2.1) does not apply in respect of a public holiday falling on or after the day on which the temporary lay-off period was exceeded. Note also that under s. 74.10(2), the period of a temporary lay-off for an assignment employee must be determined in accordance with s. 56 of the Act as modified by the special rules in s. 74.11.

The fact that an assignment employee's employment is not considered terminated merely because his or her assignment with a client of the temporary help agency employer has ended and the agency has not yet given him or her a new assignment could also be relevant to the application of section 32 of the Act. Section 32 provides that where an employee was entitled to a substitute day off work for a public holiday but his or her employment was terminated before the substitute day was taken, the employee will be entitled to public holiday pay for that day. However, the mere ending of an assignment employee's assignment does not in itself mean that his or her employment has been terminated, even if no new assignment has yet been given. Generally speaking, in that situation the assignment employee will be considered to be on lay-off, and s. 32 will not apply unless the lay-off ends up exceeding the period of a temporary lay-off before the substitute day is taken.

Note that s. 29(2.1) must be read in conjunction with s. 29(2.2). Under s. 29(2.2) if an employee is terminated pursuant to clause 56(1)(c) (by a layoff that exceeds a period of temporary lay-off) and the employee continues to be on a lay-off after that day (e.g. where employment has been terminated but has not yet been severed), s. 29(2.1) does not apply. See ESA Part X, s. 29 for a discussion of s. 29(2.2). Note as well that s. 74.10(2) provides that for the purposes of applying s. 29(2.2) to an assignment employee, the period of temporary lay-off is determined in accordance with s. 56 as modified by s. 74.11. See the discussion of s. 74.11 in ESA Part XVIII.1.

Section 74.10(1) came into force on November 6, 2009. Prior to that date, the Program took the view that an assignment employee who qualified for public holiday entitlements was on a lay-off for the purposes of s. 29(2.1) if the employee was not on assignment and the agency had not made an offer of an assignment that would, if accepted, have resulted in the employee being on assignment when the public holiday fell. If the employee had refused all offers of assignments that would have resulted in the employee being on assignment when the holiday fell or had advised the agency that he or she was not available for assignment in a week in which a holiday fell, he or she was not considered to be on a lay-off for the purposes of s. 29(2.1). This Program policy no longer applies with the coming into force of s. 74.10(1), although it would continue to apply with respect to public holidays that fell prior to November 6, 2009.

Same - s. 74.10(2)

This provision came into force on November 6, 2009. Under s. 74.10(2), the reference to a period of temporary lay-off within s. 29(2.2) with respect to an assignment employee, is determined in accordance with the modifications made to s. 56 of the Act by s. 74.11. See the discussion of s. 29(2.2) ESA Part X, s. 29. Note however that pursuant to s. 74.2, Part XVIII.1 of the Act, which includes s. 74.10(2), does not apply to those assignment employees who provide professional services, personal support services or homemaking services as defined in the Long-Term Care Act, 1994 (renamed the Home Care and Community Services Act, 1994 as of July 1, 2010) if the assignment is made under a contract between the employee or his or her employer and a community care access corporation within the meaning of the Community Care Access Corporations Act, 2001. As a result, the application of s. 29(2.2) is not modified in respect of such employees by s. 74.10(2).

Pursuant to s. 74.11, a period of temporary lay-off for the purposes of s. 56 of the Act is a period of 13 weeks within 20 consecutive weeks or under certain circumstances, 35 weeks within 52 consecutive weeks in which the assignment employee is not assigned to perform work on a temporary basis for a client of the agency. Section 74.11 also modifies "excluded week" (weeks that are not counted as weeks of lay-off but are counted in the 20 and 52 consecutive week periods) to mean a week in which for one or more days, an assignment employee is not able to work, is not available for work, refuses an offer by an agency that would not constitute constructive dismissal of the employee by the agency, is subject to a disciplinary suspension or is not assigned to perform work for a client of the agency because of a strike or lock-out occurring at the agency. See the discussion of s. 74.11 in ESA Part XVIII.1.

Section 74.10.1 – Termination of assignment (temporary help agency)

Termination of assignment - s. 74.10.1(1)

Section 74.10.1(1) requires that a temporary help agency provide one week’s written notice of the termination of an assignment to an assignment employee, provided that the assignment employee was assigned to perform work for a client for an estimated duration of three months or more at the time it was offered to the employee, and if the assignment is terminated before the end of the estimated term date.  If the temporary help agency  elects to pay one week’s wages as termination of assignment pay in lieu of the written notice, it must be done in accordance with s. 74.10.1(2). Termination of assignment and termination of employment are distinctly different. 

If an assignment employee was provided with notice of termination of assignment and subsequently (i.e., after the notice of termination of assignment has expired or pay in lieu of notice is paid) the employee’s employment is terminated, the employee will be entitled to their full notice of termination of employment pursuant to ESA Part XV, s. 57 or s. 58, as modified by ESA Part XVIII.1, s.74.11.  Any notice or pay in lieu paid in respect of a notice of termination of assignment cannot be used to offset the obligation to provide notice of termination of employment under s. 57 or s. 58, as modified by s.74.11.

However, when the employment of an assignment employee is terminated at the same time as  the assignment with a client is terminated, the notice of termination of assignment can be given concurrently with notice of termination provided under s. 57 or s. 58, as modified by s. 74.11.  For example, an employee has been employed for eight months and is on an assignment that is expected to last 5 months.  The THA terminates the assignment employee’s employment and the assignment will also end.  The THA sends a letter to the employee stating both the employee’s employment and assignment will end in one week, i.e. one weeks written notice is provided. It is program policy that this satisfies the minimum notice requirement for both termination of assignment and termination of employment.  The THA is not required to add one week of notice for termination of the assignment to the one week notice of termination of employment to provide the employee with two weeks of notice.

An assignment employee that has been employed for eight months, and regularly works Monday to Friday and is on an assignment that is expected to last five months is provided with one weeks written notice of termination of assignment on Monday.  Subsequently on Thursday of the same week, the employee is provided with written notice that their employment is terminated with the THA as of Friday.   The THA has met the requirement of providing one week written notice of termination of assignment and nothing further is required.  The employee was worked two days after being provided with written notice of termination and would be entitled to the remainder of the week’s notice as pay in lieu of notice of termination.

Three conditions for entitlement

In order for an employee to be entitled to the one week written notice or pay in lieu of notice, all three conditions set out in 74.10.1(1) must be met.

Assigned to perform work

The assignment employee must actually be assigned to perform work for a client. See ESA Part I, s. 1 for a discussion of what is considered to be assigned to perform work.

Term of three months or more

In order to qualify for notice under s. 74.10.1, the estimated term of the assignment at the time the assignment was offered to the employee must be three months or more. There is no requirement that the employee has worked for the client business for three months. The question is simply whether or not the assignment had an estimated term of three months or more at the time it was offered to the employee. Note that there is no obligation to provide an assignment employee with this information if it is not available at the time the offer is made in accordance with ESA Part XVIII.1, s. 74.6(1) para 7. It should be noted that the intent is for the notice to be provided if at the time of the offer of assignment, it was estimated to last a term of three months or more.  If a THA offers concurrent 11 week assignments, whether with the same client business or not, the assignment employee is not entitled to notice of termination of assignment. This is because at the time of the offer the assignment was not for longer than three months and therefore no notice is required. If at the time the assignment was offered it was only to last one month, and is extended beyond three months, the employee is not entitled to one weeks written notice.  An officer will have to investigate to determine if there is evidence that the offer of assignment was to last longer than three months. 

Assignment terminated before end of term

Lastly, if the employee’s assignment with the client is terminated before the estimated end of the term which at the time of the offer of assignment was made was three months or more, the employee will be entitled to one weeks’ written notice or pay in lieu of notice as per s. 74.10.1(2).

Pay during notice period

There is no equivalent in s. 74.10.1 to ESA Part XV, ss. 60(1) or (2), which set out an employee’s entitlements to wages during a week of the notice of termination of employment under ESA Part XV, ss. 57 or 58. In the absence of such provisions, Program policy is that an officer will determine the employee’s entitlement to pay during the one week’s notice of termination of an assignment provided under s. 74.10.1 based on what the employee would have earned had the assignment not been ended.

If the employee worked through the notice period then the employee is generally entitled to the wages actually earned.  However, if an employee alleged that proper notice had not been provided because for example, no work was provided during the week of notice or the hours of work had been unilaterally reduced during the week of notice, the officer would have to determine whether the work arrangements during the week of notice were nonetheless reflective of the actual terms of the assignment.  If they were not, the officer could conclude that the employee was not provided with the entitlement to the one week notice required under this section.  For example, if the officer found the assignment employee’s hours were significantly reduced during the week of notice as compared to the weekly hours regularly worked by the employee, the officer may conclude that the employer failed to provide the notice required under this section and so assess for the difference between what was paid during the notice period and what the employee would otherwise have earned.

A determination as to what the employee would have earned during the notice period will depend on what the work arrangements actually were during the assignment.  For example, if the employee had a regular work week and was paid on the basis of time, it would be reasonable to find that the employee’s entitlement during the one week notice period was equivalent to a regular week’s wages. Evidence as to what the employee’s regular wages were or what hours the employee worked in a regular work week might be found within the terms of the assignment or by reviewing the employee’s pay statements to see what the employee earned in the weeks preceding the week of notice, if that is different from the terms of assignment.

If the employee did not have a regular work week or was paid on a basis other than time, it would be reasonable in the absence of other evidence (e.g., a schedule showing the specific hours that the employee would have been required to work in the week of notice) to assess the entitlement on the basis of an average of weekly earnings.  Factors an officer might consider in determining how to average earnings could include such things as whether there is any kind of repeating cycle with respect to hours of work, whether there has been a recent trend showing a reduction or an increase in hours worked and whether the employee has been absent from work because of illness or vacation. The officer may determine after reviewing all relevant factors that the most reasonable way to determine what the employee would have worked in the notice period is an average of the weeks worked at this assignment, or the last 12 weeks if greater than three months. If the officer has evidence from the employee or client business that the assignment for the week in question was to five days per week, even though the employee normally was assigned work for three days, the employee is entitled to five days pay in lieu of notice.  For example, the client business was planning on attending a conference that week and required the assignment  employee to answer the phones for five days that week, then the entitlement is five days even though the assignment was only for three days per week.

Amount of pay in lieu - s. 74.10.1(2)

Subsection 74.10.1(1) permits a temporary help agency to pay termination of assignment pay in lieu of the notice. Subsection 74.10.1(2) provides that the pay in lieu of such notice must be equal to the amount the assignment employee would have received had the one week’s notice been given in accordance with s. 74.10.1(1).

Therefore, the Program’s policy regarding the calculation of the entitlement to pay during the working notice period where there is an allegation that proper notice has not been provided is also applicable when making the determination regarding the entitlement to pay in lieu when no notice is provided under s. 74.101.1(1). In situations where the assignment employee is working two or more assignments at the same time, and only has one assignment terminated, the termination of assignment pay in lieu of notice will be calculated to reflect only the wages the assignment employee would have earned had they continued with the terminated assignment.  The wages the assignment employee earns for the separate assignments which are not terminated are not included in the calculations of termination of assignment pay.

Vacation pay accrues not only on an assignment employee's wages during the one week notice of termination of assignment  set out in s. 74.10.1(1) but also on any pay in lieu of notice paid under s. 74.10.1(2).  For example, if the assignment employee is entitled to $500 in respect of pay in lieu, the employee would also be entitled to a further amount of $20 or $30 for vacation pay based on the statutory minimum of four per cent or six percent in accordance with ESA Part XI, s. 35.2.

If the assignment employee’s contract of employment provides for vacation pay to be calculated at a greater rate, then the vacation pay should be calculated accordingly. Such vacation pay would be due and payable in accordance with ESA Part XI, s. 36 unless the employment relationship with the temporary help agency is  terminated at the same time the assignment with the client of the agency is terminated, in which case all outstanding vacation pay would be due in accordance with ESA Part V, s. 11(5).

Exception - s. 74.10.1(3)

Under this subsection, the temporary help agency is not required to provide written notice of termination of assignment or pay in lieu to the assignment employee under s. 74.10.1(1), provided that the temporary help agency offers the assignment employee a work assignment with a client, which is reasonable under the circumstances with an estimated term of 1 week or more during the notice period.  At least one week of the work assignment must coincide with the notice period to qualify under this section.

What is reasonable in the circumstances with respect to the offered work assignment will depend on the terms and conditions of the offer  versus the assignment that is being terminated. For example, the officer might consider the hours of work, the work schedule, the nature of the work and the rate of  pay for the work in deciding whether or not the assignment offered is reasonable.

In the event that the temporary help agency offers the assignment employee another assignment, which is reasonable under the circumstances and is of an estimated term of one week or more during the notice period, and the assignment employee refuses this offer, s. 74.10.1(1) will not apply, and the assignment employee will have no entitlement to notice of termination of assignment, nor to pay in lieu of notice of termination of assignment.

Same - s. 74.10.1(4)

This subsection set outs three situations in which a temporary help agency is relieved of the obligation to provide an assignment employee with notice of termination of assignment in accordance with s. 74.10.1(1).

Wilful misconduct, disobediuence or wilful neglect of duty

An assignment employee who has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and that has not been condoned by the temporary help agency or the client is not entitled to notice of termination of assignment or pay in lieu.  

The rationale for this exemption is the view that a temporary help agency should not be obliged to provide an assignment employee with either notice of termination of assignment or pay in lieu of notice where that assignment employee was guilty of wilful misconduct, disobedience or neglect of duty.

This exemption will apply only if all of the following criteria are met:

  1. The assignment employee's conduct is wilful
  2. The assignment employee is guilty of:
    • misconduct, or
    • disobedience, or
    • neglect of duty
  3. The assignment employee's conduct is not trivial
  4. The assignment employee's conduct has not been condoned by the temporary help agency or the client

As the following discussion demonstrates, this exemption is narrower than the concept of just cause applied in the common law and in collective agreement disputes. In other words, an arbitrator or a judge may find that there was just cause to dismiss an employee, but this does not necessarily mean that the exemption in s. 74.10.1(4)(a) applies.

This exemption is substantially the same as the exemption in O Reg 288/01, s. 2(1) para. 3, which applies with respect to the notice of termination of employment obligations in the Act.

Impossible to perform or frustrated

An employee whose assignment has become impossible to perform or is frustrated by a fortuitous or unforeseeable event or circumstance is not entitled to notice of termination of assignment.  

The effect of the exemption is to relieve the employer from the obligation to give notice of termination of assignment or pay in lieu of notice where there is a supervening unforeseeable event that strikes at the very root of the assignment that is not the fault of the employer and that is not provided for in the assignment itself.

The rationale for this exemption is the recognition that employers cannot give advance notice of termination of an assignment where the termination is caused by events that the employer cannot reasonably be expected to anticipate or foresee. It is also consistent with the common law view that frustration of a contract brings the contract to an end automatically by operation of law. For example, where frustration of an employment contract occurs, the common law does not regard the employer as having terminated the contract. In determining the applicability of the frustration and impossibility exemption it is important to bear in mind three general principles.

  1. The event that allegedly caused the assignment to be frustrated must be something that strikes at the very basis of the assignment; it is not enough that the event has made the assignment a more difficult or expensive proposition for the temporary help agency or the client.
  2. The event must not have been caused through fault of the temporary help agency or the client.
  3. The assignment must not have addressed the possibility that the event might occur and have provided for its consequences.

The question may arise as to whether an assignment would be frustrated or rendered impossible to perform because the assignment employee has been on a leave under Part XIV. Given that the assignment employee is exercising a statutory right, it is Program policy that the assignment would not be frustrated or rendered impossible to perform in these circumstances.

This exemption is similar the exemption in O Reg 288/01, s. 2(1) para. 4, which applies with respect to the notice of termination of employment obligations in the Act.

Strike or lock-out

An assignment employee whose assignment is terminated as a result of a strike or lock-out at the location of the assignment is not entitled to notice of termination of assignment or pay in lieu.

The rationale for this exemption is that while the possibility that a strike or lock-out at the client business might occur therefore disrupting the client business, this is not a foreseeable event for the temporary help agency.

With respect to lock-outs, the exemption will apply only if the lock-out is a legal one under the Labour Relations Act, 1995, SO 1995, c 1, Sch A.

The exemption applies only if the strike or lock-out was at the location of the assignment.  The term "location of the assignment” is not defined in the ESA 2000, and it is not necessarily the same as establishment as defined in ESA Part I, s. 1. When a client of a temporary help agency has plants across the province, does a strike at a plant in Thunder Bay, for example, constitute a strike at "location of the assignment” of an assignment employee who works at the client's Mississauga plant? The answer is no. "The location of the assignment" means the actual plant or office of the client where the assignment employee works.

The exemption applies when the employee's assignment is terminated during a strike or lock-out, or as a result of a strike or lock-out. The meaning of "during" a strike or lock-out is self-evident. An assignment employee whose assignment is terminated during a strike or lock-out, for whatever reason, would not be entitled to notice of termination of assignment or pay in lieu. Further, if an assignment employee was given notice of termination of assignment prior to a strike or lock-out but whose assignment was terminated (for example) during a subsequent strike and before the notice period had ended, this exemption would relieve the temporary help agency of any obligation with respect to the balance of the notice period or pay in lieu of notice. There is no requirement that the assignment employee be a member of the striking or lock-out bargaining unit.

More difficult is the concept of "as a result of" a strike or lock-out. It is Program policy that in order to take advantage of the exemption, the temporary help agency must show that the strike had adverse consequences to the client business and therefore necessitated the termination of the assignment. In this regard, see Hayes Danc Inc. operating as Spicer Reman Centre v 15 Employees (December 29, 1989), ESC 2609 (Solomatenko), a decision under the former Employment Standards Act with respect to notice of termination obligations under the former Act.

Furthermore, if the strike was little more than a catalyst, precipitating a closure that would have likely happened anyway, even without the strike, then a termination of an assignment will not be "as a result of" the strike within the meaning of the exemption. The strike must be the major cause of the termination of assignment in order for the exemption to apply. If the major cause is instead, for example, lower demand, increased competition, or aging equipment and processes, and the strike is merely "the straw that broke the camel's back", then the exemption will not apply. See Robson Lang Leathers Limited v Legacy et al (January 19, 1979), ESC 574 (Picher), a decision under the former Employment Standards Act with respect to notice of termination of employment obligations under the former Act.

This exemption is substantially the same as the exemption in O Reg 288/01, s. 2(1) para. 8, which applies with respect to the notice of termination of employment obligations in the Act.

Section 74.11 – Termination and severance

Termination and severance - s. 74.11

Application of s. 74.11

Section 74.11 modifies the application of certain notice of termination and severance pay provisions in Part XV of the Employment Standards Act, 2000 insofar as assignment employees of temporary help agencies are concerned. Section 74.11 is in Part XVIII.1 (Temporary Help Agencies), which was added to the ESA 2000by the Employment Standards Amendment Act (Temporary Help Agencies), 2009 and came into force on November 6, 2009.

The modifications set out in paragraphs 1 through 14 of s. 74.11 primarily clarify how and when a termination or severance is triggered by a layoff and how termination and severance pay are calculated for assignment employees. As amended by the Good Government Act, 2009, s. 74.11 also modifies the circumstances under which mass notice entitlements are triggered for assignment employees. Sections of Part XV not modified by s. 74.11 apply as written to assignment employees and their temporary help agency employers.

It should be noted that transitional provisions regarding the application of s. 74.11 are contained in O Reg 398/09 which is a defined industry regulation for the temporary help agency industry. While most of the regulation is now of historical interest only, it is important to note that the regulation clarifies that nothing in the regulation shall be interpreted to exclude time spent by an assignment employee in the employ of a temporary help agency before November 6, 2009 for the purposes of determining an entitlement under Part XV. This rule applies for purposes of references in the Act or regulations to "period of employment", "continuous employment", "employment whether or not continuous and whether or not active" and "number of years or months of employment".

For a detailed discussion, see O Reg 398/09.

Section 74.11 was amended by the Good Government Act, 2009 to provide that on or after November 6, 2009, the trigger for mass notice entitlements set out in s. 58(1) of the ESA 2000 no longer applies with respect to assignment employees. Instead, assignment employees are entitled to an equivalent number of weeks of "mass" notice as are provided to non-assignment employees (in accordance with s. 3(1) of O Reg 288/01) if the assignments of 50 or more assignment employees at a single client's establishment ended or were ended and, as a result, the agency terminated the employment of 50 or more such employees within a four-week period.

Note that pursuant to s. 74.2, Part XVIII.1 of the Act does not apply to those assignment employees who provide professional services, personal support services or homemaking services as defined in the Long -Term Care Act, 1994, SO 1994, c 26 (renamed the Home Care and Community Services Act, 1994 as of July 1, 2010) if the assignment is made under a contract between the employee or his or her employer and a community care access corporation within the meaning of the Community Care Access Corporations Act, 2001, SO 2001, c 33. As a result, Parts X and XV of the ESA 2000 apply without modification to these employees.

Application of O Reg 288/01 Termination and Severance of Employment

The provisions of O Reg 288/01 (as amended) generally apply to temporary help agencies and assignment employees to whom Part XVIII.1 applies.

One issue with respect to the application of O Reg 288/01 concerns the "term or task" exemption from notice in para. 1 of s. 2(1). That exemption applies to relieve employers from the requirement to provide notice of termination or termination pay to an employee who is "hired on the basis that his or her employment is to terminate on the expiry of a definite term or completion of a specific task".

Generally speaking, the term or task exemption would rarely, if ever, apply to assignment employees because of the nature of the employment relationship between assignment employees and temporary help agencies. That employment relationship is described in s. 74.3 as arising when the parties agree that the employee is hired for the purposes of being assigned to perform work on a temporary basis for clients or prospective clients of the agency. In addition, s. 74.4 clarifies that the end of a work assignment does not in and of itself terminate the employment relationship between the agency and an assignment employee.

In other words, the employment relationship is premised on an agreement that the agency will place or seek to place the assignment employee in assignments and the employment relationship continues between such assignments unless it is otherwise terminated. As a result, even though an assignment (to a client) might be for a specific term or task, generally the employment (with the agency) is not; the ending of the assignment will not in and of itself end the employment relationship or in and of itself attract the application of the term or task exemption in s. 2(1) para. 1 of O Reg 288/01.

That is not to say however, that an agency could not employ an assignment employee on a term or task basis. If, for example, an agency hires an employee for the purposes of placing them in an assignment with a defined term or task and the understanding of the parties is that the employment relationship will terminate at the end of that assignment, and it does, the term or task exemption might be applicable, depending on all the facts, subject to s. 2(2) of the regulation. Again, whether or not an assignment employee is employed on a term or task basis must be determined on the particular facts of each case.

A second issue regarding the application of O Reg 288/01 concerns the exemptions from notice and severance entitlements in para. 5 of s. 2(1) and para. 4 of s. 9(1) of the regulation where the employee is terminated after refusing an offer of reasonable alternative employment with the employer. The question posed is whether in refusing an assignment (e.g. of a type contemplated by the contract of employment between the agency and the assignment employee) would be considered a refusal of an offer of reasonable alternative employment. The Program's position is that an offer of a work assignment to perform work for a client on a temporary basis cannot constitute an offer of "reasonable alternative employment". The Act defines the employment relationship between an assignment employee and temporary help agency by the fact that the agency will assign or attempt to assign the employee to perform work on a temporary basis. As a result, an offer of an assignment is not an offer of alternative employment.

The situation would be different if a temporary help agency were offering an assignment employee employment (for example) as the agency's own permanent full-time front desk receptionist. In that case, the agency would be offering alternative employment (as opposed to an offer of an assignment to perform work for a client of the agency). If the offer of such alternative employment were refused and the agency terminated the employment of the employee, the question would be whether the offer was reasonable for the purposes of applying the exemptions in para. 5 of s. 2(1) and para. 4 of s. 9(1).

A third issue regarding the application of O Reg 288/01 concerns s. 6 of the regulation. That section provides that where an employee has been given notice of termination in accordance with the Act and regulations, the employer may provide temporary employment within the 13-week period following the termination date without affecting the date of termination or the employee's period of employment.

As noted in the preceding discussion, the employment relationship with an assignment employee is defined by the agency hiring an assignment employee for the purpose of assigning or attempting to assign the employee to perform work for clients of the agency. Further, the ending of an assignment does not in and of itself end the employment relationship - see ESA Part 18.1, s. 74.3 and s. 74.4.

Unless the employer had given notice of termination to take effect on a specific date, an offer of a new assignment to perform work within 13 weeks after the preceding assignment ended would simply be an offer of a work assignment within the ongoing employment relationship, as opposed to an offer of "temporary work" that delays actual termination (but not the legal termination date) under s. 6 of O Reg 288/01.

Similarly, it is important to distinguish between the end of an assignment and the termination of the employment relationship in applying s. 8(2) of O Reg 288/01. Section 8 operates to tie together periods of employment separated by 13 weeks or less for the purposes of determining entitlements to notice of termination or pay in lieu of notice. Unless the employment relationship is terminated, s. 8(2) has no application. For example, even though an assignment has ended, unless the employment relationship is also terminated when the assignment ends, the employment relationship is ongoing. All time employed (including periods of time between assignments) is included for determining both eligibility and the amount of the notice entitlement. For a more detailed discussion, see O Reg 288/01, s. 8(2).

Section 74.11 para. 1

For most employees, s. 56(3.1) defines a week of lay-off as a week, other than an "excluded week", in which the employee earns less than one-half of his regular wages. However, for assignment employees, this definition is displaced by paragraph 1 of s. 74.11. Under paragraph 1, a week of lay-off is a week in which an assignment employee "is not assigned by the agency to perform work for a client of the agency, during the week".

"Assigned by the agency to perform work" refers to being on an assignment to perform work for a client of the agency. Once an employee has commenced an assignment with a client of the agency he or she is considered to be assigned by the agency to perform work (or on assignment) for that client until the assignment ends - see ESA Part 18.1, s. 74.4(2). As a result, despite the fact that an employee may not actually have performed any work for the client in a given week during the course of the assignment, that week would not be considered a "week of lay-off". For example, assume an agency assigned an employee to a 6 month term assignment with one of its clients. Pursuant to the terms of the assignment, the employee regularly worked Monday through Friday each week. However, the client unexpectedly shut down for a few weeks during the course of the six-month assignment. Despite not performing any work for the client in those weeks, the assignment employee is not considered to have been on lay-off during those weeks, as the employee continued to be on assignment during those weeks. This underscores the fact that, in contrast to the situation under subsection 56(3.1), a week of lay-off for an assignment employee is not defined on the basis of the extent to which earnings have been reduced.

This paragraph must be read subject to the definition of "excluded week" in paragraph 2 as well as paragraph 3 which provides that an excluded week is not counted as a week of lay-off but is included in the 20 or 52 week period within which weeks of lay-off are counted for the purposes of determining whether a termination is triggered.

Note that with respect to assignment employees of temporary help agencies, O Reg 398/09 specifies that "weeks of lay-off as well as the periods of 20 or 52 consecutive weeks (within which weeks of lay-off are counted) are to be counted only from November 6, 2009 forward for the purposes of triggering termination (and severance)."

Section 74.11 para. 2

This provision displaces, in the case of assignment employees, the definition of "excluded week" found in s. 56(3) and s. 63(2) of the Act. It defines an excluded week as a week during which for one or more days the employee is not able to work, is not available for work, refuses an offer by the agency that would not constitute constructive dismissal of the employee by the agency, or is subject to disciplinary suspension. It also specifies that an excluded week is a week in which the employee is not assigned to perform work because of a strike or lock-out at the agency as compared to "a strike or lock-out occurring at [the employee's] place of employment or elsewhere".  Note: the underlined text highlights differences between the definitions in s. 56(3), s. 63(2) and s. 74.11 para. 2.

The definition of excluded week is relevant for the purposes of paragraph 3 of s. 74.11, which provides that an excluded week is not counted as a week of lay-off but is counted as part of the period of consecutive weeks within which the specified weeks of lay-off must fall in order to trigger a termination under s. 56(1)(c).

These situations are discussed in more detail below:

1. The employee is not able to work

A week in which an assignment employee is unable to work because of illness or injury for one or more days is an excluded week and is not considered to be a week of lay-off even if the employee has not been assigned to perform work during that week.

2. The employee is not available for work

A week in which for one or more days an assignment employee is "not available to work" (say because he or she was taking time off for personal reasons) is an excluded week and is not considered to be a week of lay-off, even if the employee had not been assigned to perform work during that week. "Personal reasons" would include (for example) being on a personal emergency, pregnancy or parental leave.

Availability is a question of fact. In practice, the question of whether an employee is available for work or not would often be answered directly by the employee at the time the agency offers an assignment. In other cases, such as where the employee has not been offered an assignment by the agency in a given week, the question of availability must be answered on the basis of whether the employee could and would have been available for work had the agency offered him or her an assignment. The fact that an employee was working elsewhere during the week does not necessarily mean that he or she is not available to work.

For example, if an assignment employee of temporary help agency A is assigned to perform work for a client of agency B or has taken direct employment with employer C (assuming that the employee has not frustrated his or her contract of employment with agency A by taking such work) those weeks may, depending on the circumstances, still be weeks in which the employee was available for work vis á vis agency A and in that case would be considered weeks of lay-off as far as agency A's notice (and severance pay) obligations are concerned.

3. The employee refuses an offer that would not otherwise constitute a constructive dismissal

Paragraph 2 of s. 74.11 includes within the definition of "excluded week" a week in which for one or more days, an assignment employee refuses an offer by an agency that would not constitute a constructive dismissal. For example, if the employment contract specified that the agency would offer the assignment employee positions of particular kind or with specific hours or pay, an offer that was substantially different to what was contemplated in the contract and was adverse to the employee could constitute a constructive dismissal. A discussion of general principles that may have application to the determination of whether an offer of an assignment would constitute a constructive dismissal can be found in ESA Part XV, s. 56(1).

In cases where there is a dispute as to the terms of the employment contract, it is necessary to consider both implicit and explicit terms. Implicit terms are often not in writing and may be established by past practice or custom or judicial ruling. Explicit terms and conditions of employment might be the subject of an oral or written employment contract or may be contained in oral or written workplace policies.

For example, an assignment employee has worked for an agency for several years and has been offered and accepted temporary work assignments paying anything between the minimum wage rate and three or four times that rate; in the absence of any evidence to suggest the terms or conditions of employment have changed, an officer could find there is an implicit term that offers of such assignments are acceptable under the contract of employment. As a result, a week in which the employee refused an offer of an assignment paying the minimum wage would be an excluded week and not a week of lay-off.

It should be remembered that the purpose of this paragraph is not to find a constructive dismissal under s. 56(1)(b) (or s. 63(1)(b)), which results in termination (or severance) only if the employee actually resigns, but rather to identify a job offer as one which would constitute a constructive dismissal. The purpose of the section is to identify weeks that are excluded within the meaning of s. 74.11 para. 2, and so determine if and when a termination is or will be triggered by a lay-off under s. 56(1)(c).

4. The employee is subject to disciplinary suspension

An employee who is on disciplinary suspension is not on a week of lay-off. It is important to ensure, though, that the disciplinary suspension is bona fide and is pursuant to established company rules and procedures or a contract of employment.

5. Because of a strike or lock-out occurring at the agency

Where an assignment employee is not provided with work during a week by the agency due to a strike or lock-out at the agency, the employee is not on a week of lay-off. Note that in contrast, under s. 56(3) and s. 63(2), the strike or lock-out may occur at the employee's place of employment or elsewhere.

It is the Program's position that in order to characterize a week of lock-out as an excluded week, the lock-out by the employer must be a legal one under the Labour Relations Act, 1995, SO 1995, c 1, Sch A. In those circumstances, the employer's failure to provide work flows from the right to lock out the employees under the Labour Relations Act, 1995 and the employer should not suffer any adverse consequences for exercising that right.

On the other hand, if the lock-out is illegal, the failure to provide work is not permissible under Labour Relations Act, 1995. As a consequence, the Program's position is that a week in which employees are illegally locked out is a week of lay-off. However, a week of strike, whether illegal or legal, will be considered by the Program to be an excluded week (i.e. not a week of lay-off) because the employer does not in those circumstances have any control over whether work is provided.

Section 74.11 para. 3

Paragraph 3 describes the effect of excluded weeks in counting weeks of lay-off and establishing the period within which those weeks are counted to trigger a termination of employment by lay-off. It effectively displaces ss. 56(3.2), (3.4) and (3.6). An excluded week is not counted as a week of layoff but is included in the period of 20 or 52 consecutive weeks for the purposes of determining whether a period of temporary lay-off as defined in s. 56(2) has been exceeded, thereby triggering a termination under s. 56(1)(c).

As was noted above, because the temporary lay-off rules for assignment employees of temporary help agencies introduce a new regime for such employees effective November 6, 2009, it is program policy that the new regime applies only in respect of lay-offs that occur on or after that date (or, where a lay-off began before that date, only in respect of that portion of the lay-off that began on that date). Similarly, for purposes of the 20-consecutive week period or 52-consecutive week period that one looks to in order to determine whether there have been a sufficient number of weeks of lay-off within that period to trigger a termination, only weeks that begin on or after November 6th, 2009 are taken into account.

Section 74.11 para. 4

Paragraph 4 states that s. 56(3) to s. 56(3.6) of Part XV do not apply with respect to assignment employees of temporary help agencies. Those subsections a) define a "week of lay-off" with respect to both employees who have a regular work week and employees who do not have a regular work week, b) define an "excluded week" and c) provide that excluded weeks are not included when counting weeks of lay-off but are included when counting 20 or 52 consecutive weeks for the purposes of determining whether a lay-off exceeds a period of temporary lay-off so as to trigger a termination under s. 56(1)(c). For the purposes of determining entitlements to notice and termination for assignment employees, ss. 56(3) to (3.6) are effectively displaced by paragraphs 1, 2 and 3 of s. 74.11.

Section 74.11 para 4.1

With the exception of the changes made by paragraphs 4.1, 4.2, 4.3, and 5 of s. 74.11, the balance of the mass notice provisions in s. 58 of the Act and in s. 3 of O Reg 288/01 otherwise apply as written to temporary help agencies with respect to their assignment employees.

Paragraph 4.1 of s. 74.11 provides that on or after November 6, 2009, s. 58(1) of the ESA 2000 does not apply to a temporary help agency in respect of its assignment employees.

As of that date, an assignment employee's right to mass notice of termination is triggered under the circumstances as set out in paragraph 4.2, which provides that notice entitlements as per paragraph 4.3 must be provided to assignment employees if the assignments of 50 or more assignment employees at a single client's establishment ended or were ended and as a result, the temporary help agency terminated the employment of 50 or more such employee within a four-week period.

Section 74.11 para. 4.2

Paragraph 4.2 provides that as of November 6, 2009, an assignment employee would only be entitled to mass notice where he or she was one of 50 or more assignment employees who had been on assignment at a client's establishment and who were terminated within a four-week period by the agency because the assignments of those 50 or more assignment employees ended or were ended by the client or the agency.

Section 74.11 para. 4.3

Paragraph 4.3 sets out the mass notice of termination entitlements when 50 or more assignment employees are terminated as per paragraph 4.2 as follows:

  • At least 8 weeks’ notice if 50 or more but less than 200 are terminated;
  • At least 12 weeks’ notice if 200 or more but less than 500 are terminated;
  • At last 16 weeks if 500 or more are terminated.

Note that the number of weeks of mass notice that assignment employees are entitled to under paragraph 4.3 of s. 74.11 are the same as those to which non-assignment employees are entitled to pursuant to s. 58(1) of the Act and s. 3(1) of O Reg 288/01.

As noted above, O Reg 398/09 provides that as of November 6, 2009, the four-week periods within which terminations are to be counted for the purposes of triggering a mass notice entitlement for assignment employees must either end before November 6, 2009 or begin on or after November 6, 2009. As a result, s. 58(1) of the Act 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 "elect to work" employees). 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.

Section 74.11 para. 5

Paragraph 5 modifies the requirements to provide certain information to assignment employees when giving notice of a mass termination in accordance with paragraph 4.3.

In addition to the requirements in s. 58(2)(b) and s. 58(5) to post certain information in the workplace, paragraph 5 of s. 74.11 states that the information provided to the Director of Employment Standards under clause 58(2)(a), must also be provided individually to each assignment employee who is entitled to mass notice in accordance with para. 4.3, by the temporary help agency on the first day of the notice period or as soon after that as is reasonably possible.

The information that must be provided to each assignment employee is the prescribed information provided to the Director in a Form 1 (the form approved by the Director).

Note that paragraph 5 does not specify how the information is to be provided; there is no requirement that it be provided in writing.

If the information is not provided on the first day of notice it must be provided as soon after that date as is reasonably possible. A determination of what is reasonable will depend upon all of the facts.

As noted above, all other provisions in Part XV of the Act and O Reg 288/01 related to mass notice will apply to assignment employees without modification. See the discussions regarding mass notice entitlements in the manual at ESA Part XV, s. 58 and O Reg 288/01, s .3.

Section 74.11 para. 6

Paragraph 6 states that s. 60(1)(a) and (b) and s. 60(2) of Part XV do not apply to temporary help agencies and their assignment employees. Those provisions prohibit the employer from altering the wage rate during a notice period under s. 57 or s. 58. They also require the employer to pay during each week of notice the wages the employee is entitled to receive (i.e., what is earned during that week) and in no case to pay less than his or her regular wages for a regular work week, and if the employee does not have a regular work week, no less than the average amount of regular wages earned per week in each week of work in the 12 weeks preceding the date notice was given.

Section 74.11 para. 7

Paragraph 7 sets out the method for calculating entitlements to pay during each week of a notice period with respect to assignment employees of temporary help agencies. It effectively replaces the provisions for calculating pay during the notice period as they are set out in s. 60(1)(a), (b) and s. 60(2). It should be noted that where notice is not given, the entitlement to pay in lieu of notice (see paragraph 8 below) is based on the amounts to which the employee would be entitled, had notice been given, under paragraph 7.

Calculating wage entitlements during notice periods

If the termination is triggered under s. 56(1)(a) or (b) (i.e., is not triggered by a lay-off that exceeded a period of temporary lay-off) the agency is required to pay during each week of notice, the greater of:

  1. the wages the employee is entitled to receive (i.e., what he or she earned in each week); and
  2. the total amount of wages earned in the 12 weeks preceding the last day work was performed for a client of the agency, divided by 12.

Note that b) refers to all wages earned in the 12 week period including overtime pay, public holiday pay, premium pay and vacation pay. It refers to the wages earned for work performed for all clients of the agency within the 12 week period if there is more than one - not just the last client in that period for whom work was performed.

If the termination is triggered under s. 56(1)(c) (i.e., by a lay-off that exceeded a period of temporary lay-off), the agency is required to pay during each week of notice, the greater of:

  1. the wages the employee is entitled to receive (i.e. what he or she earned in each week) and
  2. the total amount of wages earned in the 12 weeks preceding the deemed termination date divided by 12.

Note that b) refers to all wages earned in the 12 week period preceding the deemed termination date, including overtime pay, public holiday pay, premium pay and vacation pay. It refers to the wages earned for work performed for all clients of the agency within the 12 week period if there is more than one - not just the last client in that period for whom work was performed. When a termination is triggered by a layoff that exceeds a period of temporary lay-off pursuant to s. 56(1)(c) the deemed termination date is the first day of the lay-off as per s. 56(5). For the purposes of triggering a termination under s. 56(1)(c), weeks of lay-off are counted in accordance with s. 74.11 paras. 1 through 4.

With respect to the calculation of termination pay during the period of working notice described in ii) above, it should be noted that generally, the ability to provide working notice under the ESA when a termination is triggered by a lay-off that exceeds a period of temporary lay-off, is limited to situations in which an employer who is bound by a collective agreement gives working notice of an indefinite lay-off and the lay-off does in fact exceed a period of temporary lay-off. Such a notice is treated as a notice of termination pursuant to s. 4(2) of O Reg 288/01 - see O Reg 288/01, s. 4(2) for a discussion of this provision. A non-union employer could give notice of termination in anticipation of a future lay-off that it expects will last longer than a period of temporary lay-off, but technically, in that case, the termination is effected by the notice itself, resulting in a termination under clause 56(1)(a) rather than by a lay-off exceeding a period of temporary lay-off.

Section 74.11 para. 8

Paragraph 8 sets out how to calculate pay in lieu of notice for an assignment employee. Under paragraph 8, the pay in lieu of notice entitlement for an assignment employee is the lump sum equal to the total amount the employee would have been entitled to receive during a period of working notice as calculated under paragraph 7 above.

Section 74.11 para. 9

Paragraph 9 states that s. 61(1.1) which provides a method of calculating pay in lieu of notice for employees who do not have a regular work week does not apply to temporary help agencies and their assignment employees.

Section 74.11 para. 9.1

Paragraph 9.1 provides that reference to s. 58 in s. 63(1)(e) is read as a reference to paragraph 4.3 of s. 74.11 with respect to assignment employees.

Section 63(1)(e) provides that a severance occurs if an employer has provided notice of termination in accordance with s. 57 or s. 58 of the Act and the employee resigns during the statutory notice period by giving the employer two weeks' written notice of the resignation.

As a result of paragraph 9.1, s. 63(1)(e) is read with respect to assignment employees as referring to a notice of termination under s. 57 and mass notice of termination under paragraph 4.3 of s. 74.11 instead of s. 58.

Section 74.11 para. 10

Paragraph 10 of s. 74.11 describes the effect of excluded weeks for the purposes of determining whether a severance is triggered by a lay-off. Specifically, an excluded week is not counted as a week of lay-off but is included in the period of 52 consecutive weeks for the purposes of determining whether a severance has been triggered by a lay-off of 35 weeks or more in a period of 52 consecutive weeks as set out in s. 63(1)(c).

Section 74.11 para. 11

Paragraph 11 provides that the provisions in Part XV which define a "week of lay-off", define an "excluded week" and describe the effect of such excluded weeks (ss. 63(2) to 63(2.4)) do not apply in respect of assignment employees. Those provisions of s. 63 are effectively displaced by paragraphs 1, 2 and 10 of s. 74.11.

Note that with respect to assignment employees of temporary help agencies, O. Reg. 398/09 specifies that weeks of lay-off as well as the period of 52 consecutive weeks (within which weeks of lay-off are counted) are to be counted only from November 6, 2009 forward for the purposes of triggering severance.

Section 74.11 para. 1 reads as follows:

Under paragraph 1, a "week of lay-off" for the purposes of the application of Part XV and specifically the application of s. 63(1)(c), is a week in which an assignment employee "is not assigned by the agency to perform work for a client of the agency, during the week". This provision effectively replaces ss. 63(2.1) and (2.3) of Part XV, which specify what a week of lay-off means with respect to an employee who has a regular work week and an employee who does not have a regular work week for severance purposes.

Unlike the Part XV provisions (ss. 63(2.1) and (2.3)) displaced by this paragraph, a week of lay-off is not defined on the basis of a reduction in earnings.

This paragraph must be read subject to the definition of excluded week in paragraph 2 as well as paragraph 10 which provides that an excluded week is not counted as a week of lay-off but is included in the 52 week period within which weeks of lay-off are counted for the purposes of determining whether a severance is triggered. As noted above, it is the Program's position that weeks prior to November 6, 2009 will not be counted for the purposes of triggering a severance by lay-off.

Section 74.11 para. 2 reads as follows:

This provision displaces the definition of "excluded week" found in s. 63(2) of the Act by defining "excluded week" for the purposes of applying the severance provisions in Part XV to assignment employees as a week during which for one or more days the employee is not able to work, is not available for work, refuses an offer by the agency that would not constitute constructive dismissal of the employee by the agency, or is subject to disciplinary suspension. It also specifies that an excluded week is a week in which the employee is not assigned to perform work because of a strike or lock-out at the agency as compared to "a strike or lock-out occurring at [the employee's] place of employment or elsewhere".

Note: the underlined text highlights differences between the definitions in s. 63(2) and s. 74.11 para. 2.

Section 74.11 para 12

Paragraphs 12, 12.1, 13 and 14 of section 74.11 modify the application of certain provisions in section 65 related to the calculation of severance pay with respect to assignment employees.

Paragraph 12 provides that ss. 65(1), (5) and (6), which set out the method for calculating the severance pay entitlements for employees who have a regular work week and employees who do not have a regular work week as well as establishing the maximum severance pay (26 weeks), do not apply to assignment employees. These provisions are effectively displaced insofar as assignment employees are concerned by paragraphs 13 and 14 of s. 74.11.

Section 74.11 para 12.1

Paragraph 12.1 provides that s. 65(4), which specifies severance pay is to be calculated as including the period of time for which notice should have been given under s. 57 or s. 58 but was not, is to be read as referring to the notice that should have been given under s. 57 or paragraph 4.3 of s. 74.11.

Section 74.11 para 13

In accordance with paragraph 13, a qualified assignment employee whose employment is severed other than through a lay-off that exceeds 35 weeks in a period of 52 consecutive weeks is entitled to an amount as calculated under paragraph 13.

Note that clause i refers to all wages earned in the 12-week period ending on the last day that the employee performed work for a client of the agency, including overtime pay, public holiday pay, premium pay and vacation pay. It refers to the wages earned for work performed for all clients of the agency within the 12-week period if there is more than one - not just the last client in that period for whom work was performed.

The total amount of wages earned in the 12-week period is divided by 12 to represent a week's severance pay. That amount is multiplied by the number of weeks of severance pay that the employee is entitled to (to a maximum of 26 weeks). The number of weeks of severance to which the employee is entitled is the number of completed years of employment plus completed months of employment (the latter divided by 12).

Section 74.11 para. 14

Paragraph 14 applies to determine severance entitlements when the employment of an assignment employee is severed because of a lay-off that equals or exceeds 35 weeks in a period of 52 consecutive weeks pursuant to s. 63(1)(c).

Note that clause i refers to all wages earned in the 12-week period immediately preceding the first day of the lay-off, including overtime pay, public holiday pay, premium pay and vacation pay. It refers to the wages earned for work performed for all clients of the agency within the 12-week period if there is more than one - not just the last client in that period for whom work was performed.

The total amount of wages earned in the 12-week period is divided by 12 to represent a week's severance pay. That amount is multiplied by the number of weeks of severance pay that the employee is entitled to (to a maximum of 26 weeks). The number of weeks of severance to which the employee is entitled is the number of completed years of employment plus completed months of employment (the latter divided by 12).

Section 74.11.1 - Transition

This provision was added by the Good Government Act, 2009, SO 2009, c 33. It is a transition provision that allows the new "mass" notice rules in section 74.11 para. 4.3 to apply as if they had been in force on November 6, 2009 (when Part XVIII.1 came into force.)

Section 74.11 para. 4.3 provides that (in the circumstances described in para. 4.2 of s. 74.11) assignment employees are entitled to notice of termination of at least:

  • 8 weeks’ notice if the employment of 50 or more but less than 200 assignment employees is terminated
  • 12 weeks’ notice if the employment of 200 or more but less than 500 assignment
  • 16 weeks’ notice if the employment of 500 or more assignment employees is terminated

Paragraph 4.2 of s. 74.11 provides that the notice requirements in paragraph 4.3 apply if 50 or more assignment employees who were assigned to perform work for the same client of the agency at a single establishment of that client were terminated in the same four-week period and the terminations resulted because the term of the assignments ended or the assignments were ended by the agency or client. Note that paragraph 4.1 of s. 74.11 also provides that s. 58(1) does not apply to assignment employees of temporary help agencies as of November 6, 2009.

See the discussion in ESA Part XVIII.1, s. 74.11 regarding paragraphs 4.2 and 4.3.

Section 74.12 - Reprisal by client prohibited

Reprisal by client prohibited - s. 74.12(1)

Application

This anti-reprisal provision was introduced by the Employment Standards Amendment Act (Temporary Help Agencies), 2009, and came into force on November 6, 2009.  Clauses (v. 1), (v.2) and (v.3) were later added to s. 74.12(1)(a) pursuant to the Fair Workplaces Better Jobs Act, 2017 effective April 1, 2018 to provide additional protections in the context of section 42.2, which establishes equal pay for equal work on the basis of assignment employee status. Clauses (v.1), (v.2) and (v.3) were subsequently amended pursuant to the Making Ontario Open for Business Act, 2018 effective January 1, 2019 to reflect the repeal of section 42.2.

Section 74.12 prohibits a client of a temporary help agency from reprising against an assignment employee of the agency on the same grounds as are set out in ESA Part XVIII, s. 74 and also:

  1. because the assignment employee asks the client to comply with its obligations under the Employment Standards Act, 2000 or regulations,
  2. because the assignment employee inquires about the rate paid to an employee of the client for the purpose of determining or assisting another person in determining whether a temporary help agency was complying with section 42.2 when it was in force,
  3. because the assignment employee discloses his/her rate of pay to an employee of the client for the purpose of determining or assisting another person in determining whether a temporary help agency was complying with section 42.2 when it was in force,
  4. because the assignment employee discloses the rate paid to a client employee to his/her temporary help agency for the purpose of determining or assisting another person in determining whether a temporary help agency was complying with section 42.2 when it was in force, and
  5. because the client is or may be required, because of a court order or garnishment, to pay a third party an amount owing to the assignment employee.

This provision is otherwise virtually identical to ESA Part XVIII, s. 74, which prohibits reprisals by an employee's employer. Note that reprisals by a temporary help agency as an employer of an assignment employee continue to be prohibited under s. 74.

The intention of s. 74.12 is to ensure that assignment employees can pursue their rights under the Act and participate in proceedings under the ESA 2000 or s. 4 of the Retail Business Holidays Act, RSO 1990, c R.30 free from any reprisal by a client of their temporary help agency employer.

There are no eligibility requirements. Section 74.12 applies to clients of temporary help agencies and any person who falls within the definition of assignment employee in ESA Part I, s. 1(1) and who is not otherwise excluded from the application of Part XVIII.1 by ESA Part XVIII.1, s. 74.2.

Enforcement

A contravention of s. 74.12 may result in an order for compensation and/ or reinstatement into an assignment that is issued under ESA Part XVIII.1, s. 74.17 rather than a compensation and/or reinstatement order issued under ESA Part XXII, s. 104. Note that s. 104 orders can be issued for contraventions of Part XIV, Part XVI, Part XVII and Part XVIII only. In addition to an order under s. 74.17, an employment standards officer may also issue a compliance order to a client under ESA Part XXII, s. 108 and/or a notice of contravention under ESA Part XVII, s. 113.

See the discussion of the enforcement mechanisms of reinstatement and compensation in ESA Part XVIII.1, s. 74.17.

Determining whether a reprisal has occurred - The four-step test

The Program has developed a four-step test in determining whether a reprisal occurs under ESA Part XVIII, s. 74 and this same approach (modified as necessary) is used when applying s. 74.12.

The four-step test in the context of client reprisals is set out below:

  1. Is the person alleged to have committed a reprisal against an assignment employee a client of the temporary help agency that employs that assignment employee, or a person acting on behalf of such a client?
  2. Did the client or person acting on behalf of the client intimidate an assignment employee, refuse to have an assignment employee perform work for the client, terminate the assignment of an assignment employee, or otherwise penalize an assignment employee or threaten to do so?
  3. Did the assignment employee engage in any of the protected activities set out in s. 74.12(1)(a) or s. 74.12(1)(b)?
  4. Did the client or person acting on behalf of the client intimidate an assignment employee, refuse to have an assignment employee perform work for the client, terminate the assignment of an assignment employee, or otherwise penalize an assignment employee or threaten to do so because they engaged in the protected activities referenced in step 3?

If all four questions are answered in the affirmative, a breach of s. 74.12(1) is established. Note that s. 74.12(2) places the burden of proof on the client in the context of an allegation of reprisal subject to ESA Part XXIII, s. 122(4), which provides that where there is a review of a notice of contravention, the onus is on the Director of Employment Standards to establish on a balance of probabilities that the person against whom the notice was issued contravened the provisions of the ESA 2000 as indicated in the notice of contravention.

Each aspect of the test is discussed in more detail below:

Step 1: Is the person a client business or a person acting on their behalf?

Is the person alleged to have committed a reprisal against an assignment employee a client of the temporary help agency that employs that assignment employee, or a person acting on behalf of such a client?

In determining whether a reprisal has occurred, it is necessary to first determine whether the person allegedly reprised against is an assignment employee of a temporary help agency and secondly, whether the person alleged to have committed the reprisal is the client of the temporary help agency or a person acting on behalf of a client of the temporary help agency that employs the assignment employee.

Temporary help agency

A temporary help agency is defined in ESA Part I, s. 1(1). An agency employs "assignment employees" for the purpose of assigning or attempting to assign the employee to perform work for clients of the agency on a temporary basis. Pursuant to ESA Part XVIII.1, s. 74.3, the employment relationship between the agency and the assignment employee is established where the parties agree (whether or not such agreement is in writing) that the agency will assign or attempt to assign the employee to perform work on a temporary basis for clients.

Assignment employee

The definition of assignment employee in ESA Part I, s. 1(1) refers to an employee which is defined in ESA Part I, s. 1 to include a person who was an employee. Accordingly, an individual continues to be protected from a reprisal by a client of the agency for having engaged in a protected activity while they were employed by the agency, even after the individual’s employment has terminated.

For a detailed discussion of these protected activities under ESA Part XVIII, s. 74, see the discussion of step three of the four-part reprisal test>, which is relevant, with necessary modifications, in applying s. 74.12(1)(a)(i)-(viii) and s. 74.12(1)(b).

Because s. 74.12 applies only to assignment employees (which as per the above discussion includes a person who was an assignment employee), prospective assignment employees are not accorded the anti-reprisal protection of s. 74.12. However, it is important to note that once an individual becomes an assignment employee, a client of the agency may be subject to the prohibitions in s. 74.12 with respect to that assignment employee, even though the assignment employee had not yet commenced an assignment with the client. (For an example of when this might occur, see the discussion under Step 2 below.)

Client

Client is defined in ESA Part I, s. 1(1) as a person or entity having an arrangement with a temporary help agency under which the agency agrees to assign or attempt to assign its assignment employee(s) to perform work for the person or entity on a temporary basis. As a result, a client is prohibited from reprising against an assignment employee in s. 74.12 whether or not the assignment employee had been placed with the client. For an example of when this might occur, see the discussion under Step 2 below.

A client is also bound by the actions of those persons who act on its behalf. The phrase "acting on behalf of such a client" is not a defined term. It is Program policy that the phrase be interpreted broadly, in the same way the phrase "on behalf of the employer" is interpreted broadly for the purposes of ESA Part XVIII, s. 74. As person acting on behalf of a client may therefore include:

  • An officer or manager of the client;
  • A person who is part of the directing mind of the client: for example, a controlling shareholder;
  • An employee of the client, if the employee's conduct was authorized, adopted or condoned by the client;
  • A person, who although not an officer, manager, director or employee of the client, is someone whom the client has allowed to speak for the client or carry out actions on the client's behalf. Without restricting the generality of the foregoing, this could, depending upon the particular circumstances, include the spouse of the client or the spouse of an officer, manager or director of the client, an independent contractor with whom the client is in business relationship, and a consultant retained by the client.

See the discussion in ESA Part I, s. 1 regarding the terms "temporary help agency", "assignment employee" and "client" referenced above and ESA Part XVIII.1, s. 74.3 regarding the employment relationship between an assignment employee and a temporary help agency.

Step 2: Did the client or person acting on their behalf reprise against the assignment employee?

Did the client or person acting on behalf of the client intimidate an assignment employee, refuse to have an assignment employee perform work for the client, terminate the assignment of an assignment employee, or otherwise penalize an assignment employee or threaten to do so?

The second step of the test requires a determination that there has been a reprisal. Section 74.12(1) is similar to the prohibition against reprisals in ESA Part XVIII, s. 74(1). However, what may constitute a reprisal under s. 74.12(1) includes terminating the assignment of an assignment employee and /or refusing to have an assignment employee perform work for the client rather than dismissing an employee. This change reflects the fact that assignment employees are employed by the agency rather than the client, and as a result, the client is not in a position to reprise against an assignment employee through a dismissal.

There are potentially a number of ways in which a client could reprise against an assignment employee by terminating the assignment of an assignment employee or refusing to have an assignment employee perform work for the client. They would include:

  • Prematurely ending an assignment;
  • Refusing to allow the assignment employee to commence an assignment (despite a contract with the agency for the placement); or
  • Refusing to consider the assignment employee for a placement.

Examples of reprisals:

An assignment employee was on a four-month assignment with a client and two weeks into the assignment, asked the client whether they have a right to meal breaks. Annoyed by the inquiry, the client decided to end the assignment and asked the temporary help agency to find them a replacement for the balance of the four-month assignment.

An agency and client entered into an arrangement for a six-month assignment. The assignment employee who was the subject of the arrangement happened to be seven months' pregnant at the time. When the assignment employee arrived at the client's office, the client advised her she would not be suitable for the job because it appeared she would have to stop working to take a leave when the baby was born. She was told to go back to the agency and the client cancelled the contract with the agency.

A client of a temporary help agency was seeking an assignment employee for a one-year assignment. The client interviewed several assignment employees for the placement and ultimately advised the agency that they had identified one individual as a tentative candidate for the position. However, the client asked the agency to first obtain an agreement from the assignment employee to work on all public holidays falling in the one-year assignment, before offering the assignment to the employee. The agency informed the client that the assignment employee in question refused to sign such an agreement. The client responded by telling the agency they were no longer interested in that particular assignment employee and asked the agency to ensure that any other employees sent for an interview had already signed such an agreement.

For a discussion of what actions may constitute a reprisal under ESA Part XVIII, s. 74(1), see the discussion of step two of the four-step test. That discussion is relevant, with necessary modifications, in applying s. 74.12.

Step 3: Did the assignment employee engaged in any of the protected activities?

Did the assignment employee engage in any of the protected activities set out in s. 74.12(1)(a) or s. 74.12(1)(b)?

Under s. 74.12(1)(a), a client of a temporary help agency is prohibited from reprising against an assignment employee because the assignment employee engages in any of the activities listed in clauses (i) to (viii) and s. 74.1(1)(b).

These listed activities are identical to those in s. 74(1)(a) with the exception of five clauses.

s. 74(1)(a)(i) versus s. 74.12(1)(a)(i)

Per s. 74(1)(a)(i) the employer is prohibited from reprising against an employee because the employee asks the employer to comply with this Act and the regulations. Pursuant to s. 74.12(1)(a)(i), a client is prohibited from reprising against an assignment employee because the assignment employee asks the client or the temporary help agency to comply with its respective obligations under this Act and the regulations.

In other words, a client will contravene this section not only if it reprises against the assignment employee for asking the client itself to comply with the Act and regulations, but also for reprising against the assignment employee for asking the temporary help agency to comply with their obligations under the Act and regulations.

s. 74(1)(a)(v.1) versus s. 74.12(a)(v.1)

Per s. 74(1)(a)(v.1), the employer is prohibited from reprising against an employee because the employee makes inquires about the rate paid to another employee for the purpose of determining or assisting another person in determining whether an employer is complying with Part XII (Equal Pay for Equal Work).

Pursuant to s. 74.12(1)(a)(v.1), a client is prohibited from reprising against an assignment employee because the assignment employee makes inquires about the rate paid to an employee of the client for the purpose of determining or assisting another person in determining whether a temporary help agency complied with section 42.2 when it was in force.

This protection applies to inquiries made to the client, the client’s employees, or to anyone else.

Section 42.2, which provided equal pay for equal work on the basis of assignment employment status, was repealed effective January 1, 2019. Accordingly, the question might arise as to what reprisal protection exists in relation to this repealed provision.

Section 74.12(1)(a)(v.1) provides protection against reprisal where an employee made inquiries about the rate that was paid to an employee of the client both during the timeframe that s. 42.2 was in effect (from April 1, 2018 to December 31, 2018) and after its repeal where the purpose of the inquiries is to determine, or to assist another person in determining, whether an employer was in compliance with section 42.2.

In other words, the specified inquiries are protected regardless of when they occurred, as long as they relate to a rate that was paid when s. 42.2 was in force (from April 1, 2018 to December 31, 2018).

s. 74(1)(a)(v.2) versus 74.12(1)(a)(v.2)

Per s. 74(1)(a)(v.2) the employer is prohibited from reprising against an employee because the employee discloses his/her rate of pay to another employee for the purpose of determining or assisting another person in determining whether an employer is complying with Part XII (Equal Pay for Equal Work).

Pursuant to s. 74.12(1)(a)(v.2), a client is prohibited from reprising against an assignment employee because the assignment employee discloses his/her rate of pay to an employee of the client for the purpose of determining or assisting another person in determining whether a temporary help agency complied with section 42.2 when it was in force.

Section 42.2, which provided equal pay for equal work on the basis of assignment employment status, was repealed effective January 1, 2019. Accordingly, the question might arise as to what reprisal protection exists in relation to this repealed provision.

Section 74.12(1)(a)(v.2) provides protection against reprisal where an assignment employee discloses his or her rate of pay to an employee of the client both during the timeframe that s. 42.2 was in effect (from April 1, 2018 to December 31, 2018) and after its repeal where the purpose of the disclosure is to determine, or to assist another person in determining, whether an employer was in compliance with section 42.2.

In other words, the specified disclosure is protected regardless of when it occurred, as long as it relates to a rate that was paid when s. 42.2 was in force (from April 1, 2018 to December 31, 2018).

s. 74.12(1)(a)(v.3)

This clause applies only to assignment employees.  There is therefore no equivalent provision in s. 74(1).  This provision prohibits a client from reprising against an assignment employee where the assignment employee discloses the rate paid to a client employee to his/her temporary help agency employer for the purposes of determining, or assisting another person in determining, whether a temporary help agency complied with section 42.2 when it was in force.

Section 42.2, which provided equal pay for equal work on the basis of assignment employment status, was repealed effective January 1, 2019. Accordingly, the question might arise as to what reprisal protection exists in relation to this repealed provision.

Section 74.12(1)(a)(v.3) provides protection against reprisal where an assignment employee discloses to his/her temporary help agency employer the rate paid to a client employee both during the timeframe that s. 42.2 was in effect (from April 1, 2018 to December 31, 2018) and after its repeal where the purpose of the disclosure is to determine, or to assist another person in determining, whether an employer was in compliance with section 42.2.

In other words, the specified disclosure is protected regardless of when it occurred, as long as it relates to a rate that was paid when s. 42.2 was in force (from April 1, 2018 to December 31, 2018).

s. 74(1)(b) versus 74.12(1)(b)

Under s. 74.12(1)(b), a client of a temporary help agency is prohibited from reprising against an assignment employee not because of any activity engaged in by the employee but because the client or temporary help agency is or may be subject to a court order or garnishment that would require the client or agency to pay monies owed to the assignment employee by either the client or agency, to a third party. This prohibited ground is virtually identical to s. 74(1)(b) except that ESA Part XVIII, s. 74 refers to an employer who is required to pay a third party an amount owing by the employer to the employee.

Specifically, the prohibition in s. 74.12(1)(b) is distinguished from the prohibition in s. 74(1)(b) by the fact that the prohibition is against the client (rather than the employer) reprising against an assignment employee because either the employer (i.e. the temporary help agency) OR the client is required by a court order or garnishment to pay an amount that either the temporary help agency or the client owes to the assignment employee.

For a detailed discussion of the prohibited grounds under ESA Part XVIII, s. 74, see the discussion of step three of the four-step test. That discussion is relevant, with necessary modifications, in applying s. 74.12(1)(a) and (b).

Step 4: Did the reprisal occur because the employee engaged in a protected activity?

Did the client or person acting on behalf of the client intimidate an assignment employee, refuse to have an assignment employee perform work for the client, terminate the assignment of an assignment employee, or otherwise penalize an assignment employee or threaten to do so because he or she engaged in the protected activities reference in step 3?

Sections 74.12(1)(a) and 74.12(1)(b) prohibit clients of temporary help agencies and persons acting on behalf of them from intimidating an assignment employee, refusing to have an assignment employee perform work for the client, terminating the assignment of an assignment employee, or otherwise penalizing an assignment employee or threatening to do so because the assignment employee engaged in the activities listed in s. 74.12(1)(a) or because monies owing to the assignment employee by the client or the temporary help agency were subject to garnishment or court order as per s. 74.12(1)(b). A contravention is established even if the client was motivated only in part to intimidate an assignment employee, refuse to have the assignment employee perform work for the client etc. because the assignment employee engaged in or more of the protected activities listed in s. 74.12(1)(a) or s. 74.12(1)(b).

The use of the word "because" necessitates a consideration of the client's motivation in taking the action it has taken. For a detailed discussion regarding motivation in establishing a contravention of ESA Part XVIII, s. 74, see the discussion of step four of the four-step test. That discussion is relevant, with necessary modifications, in applying s. 74.12(1)(a) and (b).

Onus of proof - s. 74.12(2)

Section 74.12(2) places the burden of proof upon a client to show that the client did not contravene the anti-reprisal provisions in s. 74.12(1).

This provision is virtually identical to s. 74(2), which places the burden of proof upon an employer to show that the employer did not contravene the anti-reprisal provisions in s. 74(1).

Note however that ESA Part XXIII, s. 122(4) provides that where there is a review of a notice of contravention, the onus is on the Director of Employment Standards to prove, on a balance of probabilities, that the person against whom the notice of contravention was issued contravened the provisions of the ESA 2000 indicated in the notice. For a detailed discussion of this onus, see ESA Part XVIII, s. 74(2).

Section 74.12.1 - Steps required before complaint assigned – Repealed

Section 74.13 - Meeting under s. 102

Meeting under s. 102 - s. 74.13(1)

Section 74.13 provides that where section 102 is applied with respect to Part XVIII.1 of the Act, certain modifications to that section apply. Please see ESA Part XXII, s. 102 for a detailed discussion of s. 102.

Section 74.13(1) was amended by the Open for Business Act, 2010, SO 2010, c 16, effective November 29, 2010 to set out additional circumstances in which employment standards officers are permitted to require s. 102 meetings in the context of Part XVIII.1 and to reflect the addition of a new subsection (10) to s. 102. Under that section, if one party fails to attend a s. 102 meeting, an officer may make a decision on the basis of:

  • Any evidence or submissions provided by that party before the meeting;
  • Any evidence or submissions provided by the other party before or during the meeting; and
  • Any other factors the officer considers relevant.

Paragraph 1 of s. 74.13(1) gives an employment standards officer the authority to require certain persons to attend a s. 102 meeting where:

  1. The officer is investigating a complaint against a client of a temporary help agency;
  2. The officer conducts an inspection under s. 91 or 92 and comes to have reasonable grounds to believe that a client has contravened the legislation with respect to an assignment employee;
  3. The officer acquires information that suggests the possibility of a contravention of the Act or regulations in relation to an assignment employee or prospective assignment employee; or
  4. An officer wishes to confirm that a client is complying with the Act with respect to an assignment employee or prospective assignment employee who lives in the client's home.

Pursuant to paragraph 2 of s. 74.13(1), an officer may require any of the following persons to attend a s. 102 meeting:

  • The client;
  • A director or employee of a client where the client is a corporation; and
  • An assignment employee or prospective assignment employee.

Paragraph 3 of s. 74.13(1) provides that the references to an employer in paragraph 1 of s. 102(10) will be read as references to a client of a temporary help agency. As a result, if a client who was served with a notice to attend a s. 102 meeting or to bring records or other documents to the meeting fails to comply with that notice, the officer may make a determination without entertaining any further evidence or submissions from the client.

Similarly, paragraph 4 of s. 74.13(1) provides that references to an employee in paragraph 2 of s. 102(10) will be read as references to a temporary help agency assignment employee or prospective assignment employee. As a result, if an assignment employee or prospective assignment employee who was served with a notice to attend as. 102 meeting or to bring records or other documents to the meeting fails to comply with that notice, the officer may make a determination without entertaining any further evidence or submissions from the assignment employee or prospective assignment employee.

Note that an employment standards officer is not required to hold meetings under section 102; other methods of investigation or inspection may be used.

Interpretation, corporation - s. 74.13(2)

Subsection 74.13 (2) provides that if a client of a temporary help agency is a corporation, the reference in paragraph 3 of s. 74.13(1) will include a director or employee of the corporation who was served with a notice to attend a s. 102 meeting or bring or make available records or other documents to such a meeting.

As a result, if an employee or director of a corporate client was served with a notice to attend a s. 102 meeting or to bring records or other documents to such a meeting and fails to comply with that notice, the officer may make a determination without entertaining any further evidence or submissions from the client.

Section 74.13.1 - Time for response

Time for response - s. 74.13.1(1)

This section was added to specify modifications required for the application of s. 102.1 (added by the Open for Business Act, 2010 effective November 29, 2010) to temporary help agencies, their assignment employees and agency clients. Section 102.1 allows an employment standards officer to give notice that a party must provide evidence or submissions within a specified time period. Under that section, if one party fails to comply with the notice to provide evidence or submissions, an officer may make a decision on the basis of:

  • Any evidence or submissions provided by that party before the notice was served;
  • Any evidence or submissions provided by the other party before or in response to and within the time specified in the notice; and
  • Any other factors the officers considers relevant.

Paragraph 1 of s. 74.13.1(1) sets out circumstances (in addition to those listed in s. 102.1) in which an employment standards officer may give notice to certain persons to provide evidence or submissions, as follows:

  1. The officer is investigating a complaint against a client of a temporary help agency;
  2. The officer is conducting an inspection under section 91 or 92 and comes to have reasonable grounds to believe that a client has contravened the legislation with respect to an assignment employee;
  3. The officer acquires information that suggests the possibility of a contravention of the Act or regulations by a client in relation to an assignment employee or prospective assignment employee; or
  4. The officer wishes to confirm that a client is complying with the Act with respect to an assignment employee or a prospective assignment employee who lives in the client's home.

Paragraphs 2 and 3 of s. 74.13.1(1) provide that where a temporary help agency client or assignment employee fails to comply with a s. 102.1 notice, the references to an employer or an employee in s. 102.1 are to be read as references to, respectively, a client and an assignment employee.

As a result, if a client who was served with a notice to provide evidence or submissions within a specified time period fails to comply with that notice, the officer may make a determination without entertaining any further evidence or submissions from the client.

Similarly, if an assignment employee who was served with a notice to provide evidence or submissions within a specified time period fails to comply with that notice, the officer may make a determination without entertaining any further evidence or submissions from the assignment employee.

Interpretation, corporation - s. 74.13.1(2)

Section 74.13.1(2) is a new subsection added by the Open for Business Act, 2010, effective November 29, 2010.

This subsection provides that if a temporary help agency's client, as referred to in paragraph 2 of s. 74.13.1(1) is a corporation, the term "client" includes a director or employee of the corporation who was served with a notice under subsection (1).

As a result, if an employee or director of a corporate client was served with a notice to provide evidence or submissions pursuant to s. 102.1 and fails to comply with that notice, the officer may make a determination without entertaining any further evidence or submissions from the client.

Section 74.14 - Order to recover fees

Order to recover fees - s. 74.14(1)

Section 74.14 applies where it is found that temporary help agency has charged a fee to an assignment employee or a prospective assignment employee in contravention of ESA Part XVIII.1, s. 74.8, paragraphs 1, 2, 3, 5 or 9.

Section 74.14(1)(a) states that where the officer finds a prohibited fee has been charged, the officer may arrange with the temporary help agency that it repay the amount of the fee to the assignment employee or prospective assignment employee directly, without an order being issued.

Section 74.14(1)(a.1) states that where an officer finds a prohibited fee has been charged, the officer may issue an order requiring the temporary help agency to repay the amount of the fee directly to the assignment employee or prospective assignment employee.  Note that an order to repay fees issued under clause (a.1) does not include administrative costs. See s. 74.14(2) below.

Section 74.14(1)(b) states that where the officer finds that a prohibited fee has been charged, the officer may issue an order to the agency requiring the amount of the fee be paid to the Director of Employment Standards in trust. Note that an order to pay fees issued under clause (b) will include administrative costs. See subsection 74.14(2) below.

Assignment employees and prospective assignment employees seeking to recover fees are subject to the two-year limitation period for filing a complaint established under ESA Part XXII, s. 96(3). Subsection 96(3) provides that a complaint filed more than two years after the contravention has occurred will be deemed not to have been filed - see ESA Part XXII, s. 96. Note that an order issued under s. 74.14(1)(a.1) or s. 74.14(1)(b)  is not subject to the limitation on recovery of wages imposed by s. 111 since an order to recover fees does not relate to wages. Finally, it should be noted that in addition to issuing an order to recover fees under either paragraphs (a.1) or (b) of s. 74.14(1), an officer could also issue a compliance order under ESA Part XXII, s. 108 and a notice of contravention under ESA Part XXII, s. 113 where there was a violation of s. 74.8(1) paragraphs 1, 2, 3, 5 or 9 as they may be issued in respect of any violation of the Act. See ESA Part XXII for a discussion of compliance orders and notices of contravention.  

Administrative costs - s. 74.14(2)

Section 74.14(2) provides that the order issued under s. 74.14(1)(b) shall, in addition to the amount of the fees owing, also contain an amount for administrative costs equal to 10 per cent of the amount owing or $100, whichever is greater. Note that there is no provision for the payment of administrative costs on an order issued under s. 74.14(a.1).

Both the fees and the administrative costs must be paid to the Director in trust. For example, if the amount of the fees to be repaid is $600, the administrative costs added to the order would be $100. If the amount of the fees owing is $2,000, the administrative costs added to the order would be $200.

There is no cap on the amount of administrative cost that may be imposed.

Administrative costs are not intended to be a penalty and the Program does not use them as such.

Contents of order - s. 74.14(3)

Subsection 74.14(3) provides that an order whether issued under s. 74.14(1)(a.1) or s. 74.14(1)(b) must state the paragraph of ESA Part XVIII.1, s. 74.8(1) that led to the order and the amount to be paid by the agency. Only a contravention of, s. 74.8(1) paras 1, 2, 3, 5 or 9 may lead to an order under this section.

The fact that a temporary help agency against whom an order has been issued had previous knowledge of the paragraph of s. 74.8(1) that was contravened and/or the amount owing does not relieve the officer of the requirement to set out this information in the order to recover fees.

Application of s. 103 (3) and (6) to (9) - s. 74.14(4)

Subsection 74.14(4) establishes that ESA Part XXII, ss. 103(3) and (6) to (9) apply, with necessary modifications, to orders to recover fees. In the context of an order to recover fees, any reference to an employee within those subsections of s. 103 is also a reference to an assignment employee or a prospective assignment employee as follows:

  1. Section 103(3): A single order may be issued with respect to fee repayment for more than one assignment employee or prospective assignment employee.
  2. Section 103(6): The order must be served on the temporary help agency in accordance with s. 95.
  3. Section 103(7): A letter advising of the issuance of an order must be served in accordance with s. 95 on any assignment employee or prospective assignment employee named in the order.
  4. Section 103(8): The temporary help agency against whom an order is issued must comply with its terms.
  5. Section 103(9): Where the temporary help agency fails to apply for a review of the order within the time period for applying for such a review, the order becomes final and binding.

Application of s. 105 - s. 74.14(5)

Section 74.14(5) indicates that ESA Part XXII, s. 105 applies, with necessary modifications, to the repayment of fees to an assignment employee or a prospective assignment employee. Two of the modifications that apply are set out in paragraphs 1 and 2 above.

Section 105 states:

Therefore, where an employment standards officer has arranged with a temporary help agency or ordered  a temporary help  agency to repay monies (fees) owing directly to an assignment employee or a prospective assignment employee under s. 74.14(1)(a) (when no order has been issued)  or 74.14(1)(a.1) (when an order is issued) but the agency is unable to find the assignment employee or prospective assignment employee after having made a reasonable effort to do so, the agency must pay the amount of the fees owing to the Director of Employment Standards in trust. A trust is imposed upon the Director in the name of the Ministry to preserve the assignment employee or prospective assignment employee's right to the funds collected.

Where there has been a payment into trust with respect to money owed to an assignment employee or a prospective assignment employee and the individual cannot be located, the funds vest in the crown. These funds effectively become part of the government's general revenues.

The language of the s. 105(3) is permissive; that is the Director is given the discretion to pay out the funds collected, without interest, to another person the Director thinks is entitled to it instead of the assignment employee or prospective assignment employee, or to the assignment employee or prospective assignment employee themselves if they are subsequently located. The Director may do this; there is no requirement in the section that the Director do so.

Section 74.15 - Recovery of prohibited fees by client

Section 74.15 provides that where a temporary help agency charges a fee to a client in contravention of paragraph 8 or 9 of s. 74.8(1), the client may commence a civil action in a court of competent jurisdiction to recover the amount of the fee paid.

A client is not precluded from filing a claim under the Employment Standards Act, 2000 for an alleged violation of this section since s. 96 establishes that any "person" may file a claim. However, an employment standards officer cannot order that the prohibited fees be repaid; the only remedy available when an officer finds a client was charged a fee in contravention of paragraph 8 or 9 of s. 74.8(1) is the issuance of a notice of contravention or a compliance order against the agency. While a notice of contravention carries a fine, neither a notice of contravention nor a compliance order can require the repayment of fees charged in contravention of paragraph 8 or 9.

Section 74.16 - Order for compensation, temporary help agency

Order for compensation, temporary help agency - s. 74.16(1)

Section 74.16 enables an employment standards officer to issue an order to compensate an assignment employee or prospective assignment employee for damages that result when a temporary help agency contravenes ESA Part XVIII.1, paragraphs 4, 6, 7, or 10. Those paragraphs state that a temporary help agency is prohibited from doing any of the following:

  • 4. Restricting an assignment employee of the agency from entering into an employment relationship with a client.
  • 6. Restricting a client from providing references in respect of an assignment employee of the agency.
  • 7. Restricting a client from entering into an employment relationship with an assignment employee.
  • 10. Imposing a restriction that is prescribed as prohibited. [Note that none were prescribed at the time of writing.]

Assignment employees or prospective assignment employees seeking a s. 74.16 order for compensation are subject to the two-year limitation period for filing a complaint established under ESA Part XXII, s. 96(3), which provides that a complaint filed more than two years after the contravention has occurred will be deemed not to have been filed.

As is the case with compensation orders issued under s. 74.17 and ESA Part XXII, s. 104, damages awards made under s. 74.16 are not subject to the limitation on the recovery of wages imposed by ESA Part XXII, s. 111, which limits the recovery of wages to those wages that come due within two years preceding date the claim is filed. Because the compensation awarded in s. 74.16 orders does not come due until the officer issues the order, ESA Part XXII, s. 111 does not restrict recovery of such compensation.

A compensation order may include a number of types of damages. The order is not simply expressed as a lump-sum amount, but rather reflects a precise and detailed breakdown of the monetary amounts assessed under each head of damages. For a discussion of the heads of damages associated with a compensation order issued under s. 104, see ESA Part XVIII, s. 74(1).

Heads of damages

While that discussion relates primarily to reprisals under ESA Part XVIII, s. 74, some modified version of the damages awarded under that section may also apply to a compensation order issued under s. 74.16. For example, when there is a violation of paragraph 4 or 7 that resulted in an assignment employee not obtaining employment with a client of the agency, the following heads of damage may apply:

  1. Loss of any earnings over the time that is required to find other direct employment;
  2. Compensation for the lost opportunity for direct employment with the client;
  3. Loss of any benefits (in the form of benefit plans) associated with direct employment with the client;
  4. Actual expenses incurred in seeking other employment;
  5. Emotional pain and suffering; and;
  6. Any other reasonable foreseeable damages.

Although similar heads of damages are considered in the context of reprisals, the damages suffered by an assignment employee as a result of a contravention of paragraphs 4, 6, 7 or 10 of s. 74.8 reflect the unique nature of the relationship between the assignment employee and their temporary help agency employer and clients of the agency. For example, under the first heading, the intention is to quantify any wage losses suffered over the time it may take or should reasonably have taken the assignment employee to obtain direct employment with another employer – that is, employment other than as a temporary help agency assignment employee. Although there may be a lengthy period in which the employee is unable to find other direct employment, they may in large measure be able to mitigate their losses because they continue to work for the agency as an assignment employee. It is in fact possible that the employee would suffer no actual damages in the time it takes to find direct employment with another employer if at all.

That said, even if alternate direct employment was subsequently found, the new position may be inferior to the one the employee would have had with the client and in that case, some compensation may be appropriate for the lost opportunity for direct employment with the client, as indicated in the second head of damages noted above. For example, compensation may be awarded under this heading if the alternate position does not have the same opportunities for advancement, does not have the same perks as the position with the agency's client and/or did not give the employee the same advantages that might result because of past work experience with that client through previous assignments.

An award might also be made under this second heading if no alternate direct employment was obtained at all. In that case, the award would attempt to compensate the employee for such things as lost promotional opportunities, regular hours, etc., associated with the lost opportunity for direct employment with the client.

Awards made under headings (3) to (6) above are subject to the same considerations as discussed in awards made under ESA Part XXII, s. 104 for contraventions of s. 74(1). See the discussion in ESA Part XVIII, s. 74(1).

Again, it should be noted that it is also possible that a contravention of paragraphs 4, 6 and 7 would not necessarily result in damages to an assignment employee or prospective assignment employee. For example, an agency may have a term in a contract with an assignment employee that is contrary to paragraph 4 of s. 74.8(1). The assignment employee may file a claim but if there is no evidence before the officer that the restriction in the contract actually prevented the assignment employee from obtaining employment with a client there may be no actual damages flowing from the contravention.

Where an agency has contravened paragraph 6 of s. 74.8(1) by imposing a restriction on a client's ability to provide a job reference, it is possible that the damages flowing from that contravention could be minimal because the lack of such a reference may not have prevented the assignment employee from (for example) obtaining other employment.

As another example, an agency may have included a provision in a contract between a client and a temporary help agency that was contrary to paragraph 7 of s. 74.8(1) but the client may not have intended to directly employ the assignment employee who filed the complaint under s. 74.8. Again, in those circumstances, no damages would flow from the breach of paragraph 7 as far as the assignment employee was personally concerned.

However, in the situations described above, the agency would be subject to other enforcement action for the breach of paragraphs 4, 6 or 7 of s. 74.8, such as a notice of contravention, a compliance order and the term itself would be deemed to be void pursuant to paragraph 9.

Finally, also note that as in any case where a compensation order may be made, an assignment employee or prospective assignment employee has a duty to mitigate their damages - see ESA Part XVIII, s. 74(1) for a discussion.

Terms of orders - s. 74.16(2)

Where an order is issued for compensation under s. 74.16(1), s. 74.16(2) provides that the order must also require the agency to pay the amount of compensation to either the Director in trust pursuant to s. 76.16(2)(a) or to the assignment employee or prospective assignment employee pursuant to s. 76.16(2)(b). If the terms of the order require the temporary help agency to pay the amount of the compensation to the Director in trust, the agency will also be required to pay an amount for administration costs equal to the greater of 10 percent of the compensation or $100. Note that the required terms in s. 74.16(2)(b) do not include administrative costs.

Contents of order - s. 74.16(3)

Subsection 74.16(3) provides that an order must set out the paragraph of ESA Part XVIII.1, s. 74.8(1) that led to the order and the order must also state the amount to be paid by the agency. Only a contravention of s. 74.8(1) paragraphs 4, 6, 7 or 10 may lead to an order under that section.

The fact that the temporary help agency against whom an order is issued had previous knowledge of the paragraph of s. 74.8(1) that was contravened, and/or of the amount owing, does not relieve the officer of the requirement to set out this information as part of the order.

Application of s. 103 (3) and (6) to (9) - s. 74.16(4)

Subsection 74.16(4) provides that ESA Part XXII, ss. 103(3), (6) to (9) apply, with necessary modifications, to orders for compensation issued against temporary help agencies under s. 74.16. When read in the context of a compensation order issued under s. 74.16, any reference to an employee within those subsections of ESA Part XXII, s. 103 is deemed to be a reference to an assignment employee or a prospective assignment employee as follows:

  • Section 103(3): A single order may be issued with respect to compensation owing to more than one employee
  • Section 103(6): The order must be served on the temporary help agency in accordance with s. 95
  • Section 103(7): A letter must be served, in accordance with s. 95, on an assignment employee or prospective assignment employee affected by the order
  • Section 103(8): The temporary help agency against whom an order is issued must comply with its terms
  • Section 103(9): Where the temporary help agency fails to apply for a review of the order within the time period for applying for such a review, the order becomes final and binding.

Section 74.17 - Order re client reprisal

Order re Client Reprisal - s. 74.17(1)

Section 74.17 applies where an employment standards officer finds that a client of a temporary help agency has contravened ESA Part XVIII.1, s. 74.12 with respect to an assignment employee. In that situation, the officer may order that the assignment employee be compensated for any loss incurred due to the contravention, be reinstated in the assignment, or be both compensated and reinstated.

Assignment employees seeking compensation/reinstatement under this section are subject to the two-year limitation period for filing a complaint established under ESA Part XXII, s. 96(3), which provides that a complaint filed more than two years after the contravention has occurred will be deemed not to have been filed. Damages awards made under s. 74.17 are not subject to the limitation on recovery of wages imposed by ESA Part XXII, s. 111, which limits the recovery of wages to those wages that come due within two years preceding the date the claim is filed. Because the compensation awarded in s. 74.17 orders does not come due until the officer issues the order, s. 111 does not restrict recovery of that compensation.

An order issued under this section may include a number of types of damages. The order is not expressed simply as a lump-sum amount, but rather reflects a precise and detailed breakdown of the monetary amounts assessed under each head of damages. For a discussion of compensation in the context of reprisal by an employer, see ESA Part XVIII, s. 74(1).

In cases where there is a reprisal by a client, the damages awards as discussed in ESA Part XVIII, s. 74(1) may not be relevant in all aspects. Primarily, the differences will be related to the fact that a client has no direct employment relationship with an assignment employee. Reprisals may therefore take the form of a client prematurely ending the assignment. For example, assume an assignment employee had a two-month term assignment with client A. Within just a few days of the commencement of that assignment and in response to inquiries from the assignment employee about their rights to a meal break under the ESA 2000, client A ended the assignment. An employment standards officer may, in that case, conclude that client A contravened s. 74.12. However, in assessing the damages (assuming that reinstatement into the assignment was not an option), the officer may consider the following:

  1. Loss of direct earnings incurred as a result of the loss of the assignment (in the example above might be up to two months' worth of earnings lost);
  2. Loss of any benefits (in the form of benefit plans) associated with the assignment;
  3. Emotional pain and suffering; and
  4. Actual expenses (if any) that might have been incurred in trying to find a reasonable alternate assignment or other work.

Any damages assessment is subject to consideration of the assignment employee's duty to mitigate their losses. For example, if the assignment employee refused the agency's offers of reasonable alternate assignments after the assignment with client A was ended, the damages award and particularly any amounts under 1) above would be significantly reduced.

The question may arise as to when an order for reinstatement in the assignment is appropriate – see the discussion at ESA Part XVIII, s. 74(1). In the context of orders issued under s. 74.17, it is important to note that any reinstatement order is limited to the terms of the original assignment with the client, assuming those terms are in compliance with the ESA 2000.

Because such a reinstatement order necessarily involves the agency as the employer of the assignment employee and a party to the contract with the client, the Act stipulates that the agency has an obligation under s. 74.17(4) to do whatever it can do to enable compliance by the client. For more information on this point see the discussion below at s. 74.17(4).

One question that arises concerns the ability of an officer to order a client to place as opposed to reinstate an assignment employee into an assignment. For example, assume a client is looking for an assignment employee to fill a 12-month assignment. The agency sends a resume to the client who then asks to schedule an interview with the assignment employee. At the interview, the client notes the assignment employee is pregnant and suggests that she would have been perfect for the position but because of a conflict between the timing of the assignment and her impending pregnancy/parental leave she will not be given the assignment. The client's actions in this case would clearly constitute a reprisal under s. 74.12; however, the remedy under s. 74.17(1) would be limited to a compensation order as that section does not provide for an order requiring a client to place an assignment employee into an assignment.

Terms of orders - s. 74.17(2)

Where an order is issued for compensation under s. 74.17(1), s. 74.17(2) provides that the order must also require the client to pay the amount of the compensation to either the Director in trust pursuant to s. 74.17(2)(a) or to the assignment employee pursuant to s. 74.17(2)(b). If the terms of the order require the client to pay the amount of the compensation to the Director in trust, the client will also be required to pay an amount for administration costs equal to the greater of 10 percent of the compensation or $100. Note that the required terms in s. 74.17(2)(b) do not include administrative costs.

Application of s. 103 (3) and (5) to (9) - s. 74.17(3)

Subsection 74.17(3) provides that ESA Part XXII, ss. 103(3), (5) to (9) apply, with necessary modifications, to orders issued under s. 74.17 for client reprisal. In the context of an order for client reprisal, any reference to an employer within those subsections in s. 103 is deemed to be a reference to a client and any reference to an employee is deemed to be a reference to an assignment employee as follows:

  1. Section 103(3): a single order may be issued with respect to more than one assignment employee affected by a client reprisal.
  2. Section 103(5): the order must contain, or be accompanied by, information setting out the nature of the amount found to be owing to the assignment employee.
  3. Section 103(6): the order must be served on the client in accordance with section 95.
  4. Section 103(7): a letter must be served on an assignment employee affected by the order in accordance with s. 95.
  5. Section 103(8): the client against whom the order is issued must comply with it according to its terms.
  6. Section 103(9): where the client fails to apply for a review of the order within the time period for applying for such a review, the order becomes final and binding.

Agency obligation - s. 74.17(4)

This provision applies where an employment standards officer has issued an order under s. 74.17 requiring a client of a temporary help agency to reinstate an assignment employee into a particular assignment. Section 74.17(4) places an obligation on the temporary help agency to do whatever it can reasonably do to enable the client's compliance with the order.

For example, a temporary help agency has an ongoing contract with a client for the provision of clerical services. The temporary help agency places an assignment employee with the client to provide filing services. The assignment employee will soon be taking a pregnancy leave. If the client subsequently reprises against the assignment employee by refusing to have her continue to perform the work assignment because she plans to take a pregnancy leave, an employment standards officer could order that the client reinstate that assignment employee into the filing assignment. The temporary help agency must then do whatever it can reasonably do in order to enable the client to comply with the order. Depending on the circumstances this may include, for instance, liaising with the client to ensure the assignment employee is reinstated into the assignment, re-opening the contract with the client for the assignment, or taking other reasonable steps to ensure the assignment employee can return to performing work for the client.

Section 74.18 - Agency and client jointly and severally liable

Agency and client jointly and severally liable - s. 74.18(1)

The Stronger Workplaces for a Stronger Economy Act, 2014, SO 2014, c 10 added this provision to the Employment Standards Act, 2000. This section imposes joint and several liability on temporary help agencies and the clients of temporary help agencies for certain unpaid wages of the agency's assignment employees, as described in s. 74.18(3), owed in respect of any pay period. This provision came into force on November 20, 2015 together with the provisions in ESA Part XVIII.1, s. 74.4.1 and s. 74.4.2 that impose new record keeping obligations on both agencies and their clients to record the hours worked by each assignment employee of the agency in each day and week for the client.

Transitional

As this joint and several liability for certain wages applies as of November 20, 2015, Program policy is that clients may be liable only for such wages as are earned on or after that date. Therefore, a client would not be liable for any wages that were earned in a pay period that ended prior to November 20, 2015 nor for any of the wages earned prior to November 20, 2015 in a pay period that began prior to that date but that ended on or after November 20, 2015.

Practically then, if a pay period begins prior to November 20, 2015 but ends on or after November 20, 2015, s. 74.18 would be applied as if the pay period began November 20, 2015.

Note that this joint and several liability imposed on the client is proportional if an assignment employee has performed work for more than one client in the pay period in respect of which the wages are unpaid. See the discussion of ss. 74.18(2) and (3) further below in this section.

Same, more than one client - s. 74.18(2)

This provision states that the joint and several liability imposed on clients of agencies for certain unpaid wages of the agency's assignment employees as described in s. 74.18(3) is a proportional liability if the assignment employee has performed work for more than one client of the agency in the specific pay period for which the wages are owed.

Therefore, while the agency is liable for the full amount of any unpaid wages, each client is liable only for the unpaid wages as described in s. 74.18(3) earned in any given pay period in an amount that is proportional to the hours worked for the client in the pay period, relative to the total hours worked.

For example, assume an assignment employee was owed $2000 in unpaid wages as described in s. 74.18(3) for a single pay period. The employee had worked the following hours in the pay period:

  • Total hours worked: 80
  • For client A - 20 hours
  • For client B - 40 hours
  • For client C - 15 hours
  • For client D - 5 hours

The proportionate liability of each client is based on the number of hours worked for each client relative to the total hours worked in the pay period:

  • For client A: 20 hours/80 hours = 25% X $2000 or $500
  • For client B: 40 hours/80 hours = 50% X $2000 or $1000
  • For client C: 15 hours/80 hours = 18.75% X $2000 or $375
  • For client D: 5 hours/80 hours = 6.25% X $2000 or $125

The agency is liable for the full $2000.

Also see the discussion of s.74.18(3) below, which sets out the types of wages that clients are liable for and provides examples in which different types of wages are unpaid in respect of the same pay period.

Transitional

As noted in the discussion of s. 74.18(1) above, Program policy is that a client of a temporary help agency will not be liable for any wages earned in a pay period that ends before November 20, 2015 or in any portion of a pay period preceding November 20, 2015.

For example, assume an assignment employee was owed $2000 in unpaid wages as described in s. 74.18(3) for a single pay period, but the pay period in question began on November 16, 2015 and ended November 29, 2015. Only those wages earned and only those hours worked for clients on or after November 20, 2015 would be included in the calculation of each client's proportional liability.

In this case, assume the employee worked a total of 80 hours and 40 of those hours were worked between November 20, 2015 and November 29, 2015 (inclusive).

The first step in determining the liability of the clients would be to determine what portion of the wages as described under s. 74.18(3) were earned in respect of the 40 hours worked between November 20, 2015 and November 29, 2015 (inclusive). Assume that of the $2000 owed in respect of the pay period beginning November 16, 2015 and ending November 29, 2015 that $1000 was earned on or after November 20, 2015.

Secondly, the proportionate liability would be determined with respect to only those clients for whom the employee performed work between November 20, 2015 and November 29, 2015 (inclusive) based on the proportion of hours worked for each such client between November 20, 2015 and November 29, 2015.

Total hours worked: 80

Hours worked November 20 to 29, 2015 inclusive: 40

Hours worked prior to November 20, 2015:

  • For client A: 20 hours
  • For client B: 40 hours
  • For client C: 15 hours
  • For client D: 5 hours

Hours worked November 20 – 29, 2015:

  • For client A: 8 hours
  • For client B: 32 hours
  • For client C: No hours
  • For client D: No hours

The proportionate liability of each client is based on the number of hours worked for each client relative to the total hours worked in that portion of the pay period beginning November 20, 2015 and ending November 29, 2015:

  • For client A: 8 hours/40hours = 20% x $1000 or $200
  • For client B: 32 hours/40 hours = 80% x $1000 or $800
  • For client C: 0 hours/40 hours = 0% x $1000 or $0.00
  • For client D: 0 hours/40 hours = 0% x $1000 or $0.00

The agency is liable for the full $2000. However, in assessing the clients' joint and several liability, the employment standards officer would look only at those hours worked and wages earned between November 20, 2015 and November 29, 2015 (inclusive) as set out in the example above.

Wages for which client may be liable - s. 74.18(3)

Subsection 74.18(3) describes those wages of a temporary help agency's assignment employees for which the clients of the agency may be jointly and severally liable. The wages are limited to regular wages, overtime pay, public holiday pay and premium pay.

Regular wages are defined in ESA Part I, s. 1. The definition specifically excludes overtime pay, public holiday pay, premium pay for work performed on a public holiday, vacation pay, domestic or sexual violence leave pay, termination pay, severance pay and termination of assignment pay, and any greater right or benefit to which the employee is entitled pursuant to ESA Part III, s. 5(2) in respect of such wages. Regular wages would, however, include wages for work performed such as the employee's hourly rate or salary, piece rate, shift premiums and commissions.

In addition to regular wages, clients are jointly and severally liable under this subsection for overtime pay, public holiday pay and premium pay. The liability for these specific wages, i.e., overtime pay, public holiday pay and premium pay (for work performed on a public holiday), will therefore extend to any greater right or benefit to which the employee is entitled pursuant to ESA Part III, s. 5(2) in respect of overtime pay, public holiday pay and premium pay.

In accordance with this subsection, clients have no liability for vacation pay, termination pay or severance pay.

Calculating each client's liability for the unpaid wages is determined in accordance with the method described in s. 74.18(2). Effectively, a client is proportionately liable for a share of the total wages as described in s. 74.18(3) that are unpaid in respect of any particular pay period, if the assignment employee has performed work for more than one client of the agency in the specific pay period for which such wages are owed.

Specifically, amounts owing in respect of any or all the wages described in s. 74.18(3) are added together. Each client's proportionate liability is then calculated by multiplying that amount by the ratio of the number of hours worked for the client in the pay period divided by the total hours worked for all clients in that pay period.

Example 1

An employee has a two-week pay period and total wages owed for that pay period as follows:

  • $100 in respect of overtime pay for week 1 of the pay period
  • $200 for premium pay for work performed on Christmas Day and Boxing Day in week 2 of the pay period
  • Employee worked 20 hours for client B in week 2
  • Employee worked a total of 60 hours in the pay period

The employee is owed a total of $300 and the agency is liable for that full amount.

Client A is liable for a proportionate amount of the total wages described in subsection 3 that are owing for the pay period = $300 (that is, both the overtime pay and premium pay owing in respect of the pay period). The proportionate liability is based on the relative number hours the assignment employee worked for Client A as compared to the total hours worked in the pay period as follows:

  • $300 X 40 hours/60 hours = $200

Client B is liable for a proportionate amount for the pay period as follows:

  • $300 X 20 hours/60 hours = $100

Example 2

An employee is terminated at the end of a two-week pay period and is owed wages in respect of that last pay period as follows:

  • $200 in respect of overtime pay for week 1 of the pay period
  • $300 for premium pay for work performed on Christmas Day and Boxing Day in week 2 of the pay period
  • $1000 in respect of regular wages for weeks 1 and 2 of the pay period
  • $500 termination pay in lieu of working notice
  • $200 in respect of unpaid vacation pay
  • Employee worked 20 hours for client A in each of weeks 1 and 2
  • Employee worked 20 hours for client B in week 2
  • Employee worked a total of 60 hours in the pay period

The employee is owed a total of $2200 and the agency is liable for that full amount. However, in accordance with s. 74.18(3), the clients of the agency have no liability with respect to the $200 in outstanding vacation pay or the $500 termination pay in lieu of notice owing to this employee.

Client A is liable for a proportionate amount of the total wages described in s. 74.18(3) that are owing for the pay period = $1500 (that is, the overtime pay, premium public holiday pay and regular wages only owing in respect of the pay period). The proportionate liability is based on the relative number hours the assignment employee worked for Client A as compared to the total hours worked in the pay period as follows:

  • $1500 X 40 hours/60 hours = $1000

Client B is liable for a proportionate amount for the pay period as follows:

  • $1500 X 20 hours/60 hours = $500

Agency primarily responsible - s. 74.18(4)

Section 74.18(4) provides that a temporary help agency, as the employer of an assignment employee, is primarily responsible for the employee's wages, but the proceedings against the employer do not have to run their full course before proceedings may be commenced against a client of the agency.

See also the discussion in ESA Part XX, s. 81(2), a similar provision that applies in the context of a corporate director's liabilities for the wages of an employee of a corporate employer.

Enforcement - Client deemed to be employer - s. 74.18(5)

This provision allows certain enforcement provisions of the ESA 2000 that apply with respect to employers to be used in relation to clients of temporary help agencies for the purposes of enforcing client liability for the wages of the agency's assignment employees, just as if the client was the employer of the assignment employee, including provisions in:

  • Part XX: Liability of Directors
  • Part XXI: Who Enforces this Act and What They Can Do
  • Part XXII: Complaints and Enforcement
  • Part XXIII: Reviews of the Board
  • Part XXV: Offences and Prosecutions

In other words, any provision that would apply with respect to the employer (in relation to the enforcement of entitlements to unpaid wages) may be read to refer to a client of a temporary help agency if a liability for unpaid wages has been found in accordance with s. 74.18. For example, an employment standards officer may require the client to attend a meeting under ESA Part XXII, s. 102 or issue an order under ESA Part XXII, s. 103 or s. 106.

Same - Orders - s. 74.18(6)

This provision specifies that whereas the client of a temporary help agency is deemed to be the employer of an assignment employee for the purposes of enforcing the joint and several liability of a client under s. 74.18, specifically, the order issued by an employment standards officer under ESA Part XXII, s. 103 against the client is treated as if it were an order against the employer.

This means for example that a client could appeal such an order to the Ontario Labour Relations Board. It also means that the directors of a client that was a corporation are subject to the director liability provisions in ESA Part XX as if they were directors of an employer.