Considering downsizing? Here is what Manitoba employers need to know

What is considered a layoff in Manitoba?

In Manitoba, a layoff is defined as a temporary break in employment where employees are likely to return to work. Employers do not need to provide notice to employees that they are being laid off. However, if the layoff is longer than eight weeks in a 16-week period, the layoff becomes a termination and notice is required.

What are the individual notice requirements in Manitoba?

The minimum amount of notice or pay in lieu of notice depends on the length of employment with the organization.

The notice requirements are as follows:

Employees may be entitled to additional notice or pay in lieu of notice pursuant to an employment contract, employer policy or collective bargaining agreement.

What are the group notice requirements in Manitoba?

In addition to individual notice periods, employers are required to provide greater notice or pay in lieu of notice when terminating the employment of 50 or more employees within any four-week period.

The minimum notice for a group termination is as follows:

Where a group termination occurs, employers are required to provide written notice to the Minister of Labour and Immigration that specifies the effective dates of the terminations, the reasons for the terminations and the estimated number of affected employees in each occupational classification. This notice must also be provided to each impacted employee and any applicable union.

The notice must also contain the nomination of at least two individuals to represent the employer should the Minister of Labour and Immigration choose to exercise their power to establish a joint planning committee, whose purpose is to develop on a co-operative basis an adjustment program to eliminate the need to terminate the employment of the affected employees, to minimize the impact of termination on employees whose employment is terminated and to help the terminated employees obtain other employment.

Are there exceptions to notice requirements in Manitoba?

There are certain situations where an employer is not required to provide notice of termination both in the context of individual terminations and group terminations. This includes, but is not limited to, situations where:

• employees are placed on a temporary layoff period of no more than eight weeks in a 16-week period;
• the employee works in the construction agency;
• the employer can prove just cause;
• employment is for a specific length of time or a specific task or job; or
• the employee has substantial control over whether or not to accept work and is not penalized by the employer for choosing not to work, except for temporary help employees who are entitled to notice if they regularly work more than 12 hours per week.

Are layoffs different for unionized workplaces?

Employers should consult their collective agreement to review obligations in the event of a layoff.

Employers may also have additional legislative obligations if it moves work between its locations. There may be successorship or organizational change provisions to address.

Employers may also have notification obligations to the union if a decision has been made to temporarily lay off employees in the future, especially if collective bargaining is ongoing.

Can employees claim their employment is terminated when they are laid off?

Employers should be aware the employees who are laid off may try to claim that the layoff is really a termination. These employees may seek to recover contractual or common law notice entitlements. Each potential claim will be dealt with on a case-by-case basis.

Are there additional considerations for foreign workers?

The notice requirements for foreign workers are the same as any other employee being given notice for individual or group termination. However, other considerations may affect the foreign worker’s entitlement to common law reasonable notice or other compensation.

If you’re an employer with questions about terminations involving temporary foreign workers, please reach out to our immigration team.

If you have questions about the legal risks and strategies to downsizing your workforce, please contact one of MLT Aikins labour and employment lawyers.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.

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