If they accepted the buyer’s offer, the reinstatement duty runs from the day the leave ends, not the day of closing — and it does not excuse itself just because the buyer restructured in between.
Short answer
Ontario’s Employment Standards Act, 2000 s.53(1) requires that “Upon the conclusion of an employee’s leave under this Part, the employer shall reinstate the employee to the position the employee most recently held with the employer, if it still exists, or to a comparable position, if it does not.” A legitimate restructuring that eliminated the role while the employee was away is not a defence — the section asks only whether a comparable position exists on the return date, and benefit-plan contributions under s.51(1) keep accruing throughout the leave regardless.
Nothing in s.53 lets an employer discharge the duty by pointing to a genuine business reason for eliminating the role, and nothing in the Act defines “comparable” by formula — the safer reading treats it as covering seniority, compensation, duties and status together, not merely base pay. The trap is timing: integration planning runs off the org chart as it exists during the restructuring, while the reinstatement duty is measured on the date the leave actually ends, which can sit months later. A pre-closing list of employees on leave, cross-checked against every planned change through their scheduled return dates, is the only way to catch the gap before the return date does.
This duty only applies to an employee the buyer actually hired. Continuity under ESA s.9(1) reaches someone only where “the purchaser employs an employee of the seller,” and s.59(1) provides that “Time spent by an employee on leave or other inactive employment is included in determining his or her period of employment” — so an employee excluded from the offer list because they were on leave, rather than actively at work, keeps their full accrued entitlement, and it stays with the seller in full. Being on leave never shrinks the number; it only changes which employer owes it.
The reinstatement duty decided a parental-leave employee the buyer had to reinstate into a job that no longer existed. The exclusion-from-the-offer version is the subject of four employees on leave left off the offer list, whose notice bill did not shrink.
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