As many employees gradually return to the physical workplace or jobsite, governments are encouragingly lifting restrictions on employers. Indeed, nearly one million people in Canada found jobs between May and June. Nonetheless, employers across the country are continually reassessing how to best position themselves for what remains an uncertain future.

In some cases, the need to adapt and maintain operational capacity may require employers to consider group or mass terminations. Generally, mass terminations are governed by applicable labour standards legislation and regulations. To that end, remember that in Canada each jurisdiction has slightly different rules regarding group terminations. This piece discusses Alberta, British Columbia, Ontario, and the federal sphere.

For information on such terminations in Quebec, please click here (in French only).

1. What are group or mass terminations and what triggers them?

Group termination provisions may be triggered if a significant and set number of employees in an establishment or location are laid off within a stipulated timeframe (which varies by jurisdiction). Triggering a group termination provision may dictate minimum employee entitlements as well as other employer obligations such as notifying government and establishing a joint committee. What triggers these special rules varies by province, as follows:

Jurisdiction What triggers a group termination?
Alberta A group termination in Alberta generally occurs if an employer intends to terminate 50 or more employees at a single location and the terminations will occur within a four-week period.
British Columbia British Columbia legislation generally triggers group termination requirements when the employment of 50 or more employees in a single location is to be terminated within any two-month period.
Ontario Ontario's mass termination requirements are triggered when the employer terminates 50 or more employees at the employer's "establishment" in the same four-week period. The scope of an "establishment" is generally based on all the employer's places of business in a municipality.
Federal Federally regulated employers trigger group requirements when they terminate, either simultaneously or within any period not exceeding four weeks, 50 or more employees employed within a particular industrial establishment. The specifics of what is included with an industrial establishment is defined by regulation.

2. How much notice must be given to employees subject to group terminations, generally?

Each province has different group termination notice requirements, as follows:

Jurisdiction How much notice must be given to employees subject to group terminations, generally?
Alberta In light of COVID-19, the provincial government has temporarily suspended group termination notice requirements due to the pandemic. Currently, there are no notice requirements for group terminations at this time.

When the government lifts the temporary measures, it can be expected that, in the normal course of things, terminations of 50 to 99 employees require at least eight weeks of notice. Terminations of 100 to 299 require at least 12 weeks. And terminations of 300 or more employees require at least 16 weeks.
British Columbia Employers must provide at least eight weeks if 50 to 100 employees will be affected; at least 12 weeks if 101 to 300 employees will be affected; and at least 16 weeks if 301 or more employees will be affected.
Ontario Terminations of 50 to 199 employees require at least eight weeks of notice. Terminations of 200 to 499 employees require at least 12 weeks of notice. And terminations of 500 or more employees require at least 16 weeks.
Federal Currently, federally regulated employers must provide at least 16 weeks' notice when triggering group termination requirements.

3. What specific requirements apply to notice and reporting, generally?

In addition to varying notification requirements, group terminations may also necessitate communicating information about the terminations to the government, union, and employees, as follows:

Jurisdiction What specific requirements apply to notice and reporting, generally?
Alberta In light of COVID-19, as a temporary measure, Alberta employers must provide notice to the minister as soon as practicable, specifying certain information.

When the government lifts the temporary measures, it can be expected that, in the normal course of things, employers must provide the minister with at least the same amount of notice as is given to employees. If the employees are unionized, the employer must provide a copy of the written notice to the union. If the employees are not unionized, the employer must provide a copy to each employee. The notice must include the number of employee terminations, the termination dates, and any other regulatory requirements.
British Columbia Employers must notify the responsible minister and provide a copy of this written notice of group termination to each affected employee and any union(s).
Ontario Ontario employers must provide the director of employment standards with notice as well as post the notice in a conspicuous place in the workplace. Employers must also provide a written notice to each employee.
Federal Federally regulated employers must notify the minister of labour and provide copies to the minister of employment and social development and the Canada Employment Insurance Commission. The employer must also provide a copy to any trade union. In non-unionized work environments, the employer must either provide a copy to the employee or post the notice in a conspicuous place.

4. Are there any exceptions or other requirements?

Group termination requirements have certain exceptions that vary by jurisdiction. Here are some of the most important ones:

Jurisdiction Are there any exceptions or other requirements?
Alberta
  • Seasonal employees or employees hired for a definite term or task are not entitled to group termination notice. As discussed above, employers have been temporarily relieved of most group termination requirements because of the pandemic.
British Columbia
  • Group termination notification requirements are subject to several exceptions including temporary employment, impossibility to perform the employment contract, construction site employees, and employees who refused alternative employment.
  • The minister can also require British Columbia employers to establish a joint "adjustment committee" consisting of both employee and employer representatives. This committee is meant to develop an adjustment program that either eliminates the needs for terminating employees or minimizes the impact of terminating employees and helps them obtain other employment.
  • Employers can apply for a variance to alter the various group termination requirements. However, such variances are rare and must be supported by the majority of employees and be consistent with the purpose of the Employment Standards Act. Additionally, the variance must facilitate the preservation of the employer's operations, an orderly reduction or closure of the employer's operations, or the short term employment of employees for special projects.
Ontario
  • Mass termination requirements in Ontario are subject to exceptions. Notably, such requirements don't apply if the number of terminations is not more than 10% of the number of employees with at least three months' experience, and the terminations were not caused by the permanent discontinuance of part of the employer's business at the establishment.
Federal
  • Federally regulated employees are not entitled to group termination notice if they are employed seasonally or irregularly under an arrangement whereby the employee elects to work or not to work when requested to do so.
  • Additionally, federally regulated employers must implement a joint planning committee that develops an adjustment program to eliminate the necessity for employee terminations or to minimize their impact and assist those employees in finding other jobs.
  • Federally regulated employers can apply for an order to alter the various group termination requirements. However, such orders are rare and the minister must be satisfied that applying these requirements i) would be unduly prejudicial to employee interests, ii) would be unduly prejudicial to employer interests, iii) would be detrimental to the operation of the establishment, or iv) are not necessary because measures for helping employees have been established by collective agreement or otherwise.

Takeaways

Although governments continue lifting some restrictions, employers will undoubtedly be called upon to continue re-evaluating their organizational structures. In certain situations, reaching a sustainable model may require considering issues related to group or mass terminations.

In addition, employers should note that, in some cases, employees may be entitled to additional notice, calculated on an individual basis. Usually, an employee's entitlement to individual notice of termination depends on a constellation of factors, including the language employed in his or her contract of employment and, in some cases, can be based on the employee's length of service and other factors, such as the employee's age and ability to find new employment.

As we discuss above, employers operating in Alberta, British Columbia, Ontario, and the federal sphere would be well served to keep in mind the varying rules and considerations across jurisdictions. Indeed, taking careful note of them can help employers to safeguard compliance and minimize legal risks in this area.

Originally published 24 July, 2020

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