Length of Employment/Tenure

[NAHR@spectraforce.com]

#94842

Forum: Private

Hello,

I represent a staffing agency and we are trying to understand how employment tenure should be calculated for our temporary workers, specifically in relation to when an assignment ends.

To provide some context: when one of our workers completes an assignment, they are completely off-boarded from our agency (i.e., there is no ongoing employment relationship once the assignment ends). However, we need to determine how we should calculate their tenure with us, particularly if they return for future assignments after a break

I’m wondering if there are any overarching laws in Canada regarding look-back periods for employment that would influence how we calculate a worker’s tenure, especially in situations where there is a gap between assignments. If there is no national law, does Ontario have specific regulations or guidelines that would apply? In some situations in the US, there are specific “look back” periods (7 yrs) when considering tenure or length of employment.

Any guidance or direction you could provide would be much appreciated!

Thank you in advance!

[Haley O’Halloran]

#94843

In Ontario, the calculation of employment tenure for temporary workers, especially concerning gaps between assignments, is guided by the Employment Standards Act (ESA). According to the ESA, once an employment relationship is established between a temporary help agency and an assignment employee, this relationship continues regardless of whether the employee is currently on an assignment or experiencing gaps between assignments. The employment relationship is considered ongoing unless it is explicitly terminated by either party.

Therefore, if your agency off-boards workers completely after each assignment, effectively terminating the employment relationship, their tenure would be calculated based on each distinct period of employment. In such cases, previous periods of employment would not count towards the calculation of tenure for future assignments. However, if the employment relationship is maintained during gaps between assignments, those periods would contribute to the overall length of service.

It’s important to note that there isn’t a specific “look-back” period defined in Ontario’s employment legislation that dictates how far back previous employment periods should be considered when calculating tenure. The key factor is whether the employment relationship was maintained during the gaps between assignments.

Given the nuances in employment relationships and tenure calculations, it would be prudent to consult with a legal professional or employment standards specialist to ensure your agency’s practices align with provincial regulations and to determine the most appropriate method for calculating employment tenure for your temporary workers.

To read more about the difference in types of employment and the tenure they garner, check out this article.

-HRInsider Staff

[NAHR@spectraforce.com]

#94845

Thank you for clarifying! To better our understanding, we had a few more follow-up questions:

You mentioned that previous periods of employment would not counts towards the calculation of tenure for future assignments.
– If a temporary worker completes a 6 month assignment, is then terminated, and after a period of time gets rehired and completes a one year assignment and is then terminated again, do we look at the collective tenure of 1.5 yrs, or only required to look at the length of their current assignment (1 yr) when considering things such as termination pay or giving notice?
– Are we required to look at a worker’s entire work history with us (if they’ve had multiple assignments) in determining if they qualify for any sort of severance based on Ontario law?

Thank you!

[Haley O’Halloran]

#94847

Yes of course – I hope these answers are sufficient but please let me know if you need any more info.

Under Ontario employment law, whether you consider the worker’s entire tenure (1.5 years) or just their most recent assignment (1 year) depends on several factors, including the Employment Standards Act, 2000 (ESA) and potential common law considerations. Here’s a breakdown:

1. Employment Standards Act (ESA) Perspective
Under the ESA, temporary workers (assignment employees) of a staffing agency are generally not considered employees of the client company but of the staffing agency. However, if the worker was directly employed by your company (rather than through an agency), then the total time worked—including breaks in service—might still count towards their continuous employment if the gap between assignments was short.

Breaks in service:

If the break between assignments was brief (e.g., a few weeks or months), the Ministry of Labour might view the entire period (1.5 years) as continuous employment.
If there was a clear break where the worker was not considered an employee and had no reasonable expectation of recall, then only the most recent assignment (1 year) may be considered.

Termination pay & notice:

Under the ESA, employees qualify for termination pay if they’ve worked at least 3 months continuously with their employer.
If the employment relationship is deemed continuous, the worker might be entitled to termination notice/pay based on 1.5 years of service.
If there was a legitimate break in employment, your obligation may only be based on the most recent assignment (1 year).

2. Common Law Considerations
Even if the ESA does not require recognizing previous assignments, common law wrongful dismissal claims may consider the totality of the worker’s history with your company. Courts often look at the entire relationship, including whether the worker reasonably expected continued employment.

If the worker had a reasonable expectation of ongoing employment due to recurring assignments, a court might determine that their total service (1.5 years) should count toward severance calculations.
If they were clearly terminated with no expectation of return and rehired later as a new hire, the court may only consider the most recent assignment.

Key Takeaways for Your Situation:
If the gap between assignments was short, the Ministry of Labour or a court might treat the total period (1.5 years) as continuous employment.
If the worker was clearly terminated with no expectation of rehire, only the latest assignment (1 year) may count.
Severance entitlements under the ESA only apply if the worker meets the eligibility threshold (e.g., 5+ years of service, employer payroll of $2.5M+).
Common law severance could consider the full 1.5 years depending on the circumstances.

-HRInsider Staff

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