Once a job guarantee is issued in a WFA notice, employers cannot pull it back, legal expert says
Last week, employees from Canada’s parks and recreation department received notices warning that their jobs could be affected by workforce adjustments.
Thousands of employees received the notices as the department enters its second round of workforce adjustments, according to Bloomberg News. The department plans to eliminate roughly 500 full-time positions in this round.
The government issued notices for the first round in June but did not disclose how many employees received them or which employees were affected, CTV News reports. Early last year, the federal government reported that 25,368 employees had received workforce adjustment notices.
Why are workforce adjustment notices given out?
For HR professionals, these notices carry real legal weight, especially if they handle the process incorrectly, and find themselves locked into job guarantees they cannot fulfill, says Jozef Hadlaw-Murray, employment lawyer at Shields O’Donnell MacKillop LLP in Toronto, Ont.,.
He says workforce adjustment (WFA) notices are often used by the federal government and should not be confused with layoff notices.
“The biggest distinction is the workforce adjustment notice is effectively a notice that your job may be affected by virtue of a redundancy or restructuring or whatever it is that the director has contemplated,” he says. “But it’s unlike a layoff.”
The notices, if anything, are intended to reduce or avoid layoffs, Murray notes.
WFA notices are normally given to indeterminate employees to let them know their services may no longer be required due to lack of work, or they might receive a relocation or an alternative role, Murray says.
“The layoff is kind of the end result, but there’s a whole bunch of steps that happen between that many companies or the federal government tries to implement to try and avoid that outcome.”
How WFA notices work for employees
Employees may receive different streams of notices with different provisions, Murrary says. Some may receive a guarantee of a reasonable job offer, while others may be given options to choose from or opt out.
"At that point, they have 120 days to choose what they do at the government,” he says. “And then there’s a whole bunch of mitigation work that they can do in terms of determining whether there’s someone within the classification that wants to put their hand up and say, ‘I’ll voluntarily leave, resign, retire, whatever, for a package.’”
While the goal of workforce adjustment notices is to preserve employment, employees’ work can shift, Murray says. When that happens, employers have to make sure any new role is “reasonably comparable” to work the employee is capable of performing.
“It then kind of shifts to an assessment of suitability and reasonableness in terms of placement,” he says.
Clear communication is HR’s priority
Clear communication should be HR’s priority when issuing WFA notices, Murray says. Employees need to understand their employment status — including whether they have a guaranteed job offer or must choose among available options.
“It needs to be made very clear, like, what are deadlines? What are options? What are the consequences of said options? What are the retraining options, arrangements that could be provided? What are the layoffs?,” he says.
For HR professionals, there is also an obligation to identify the governing collective agreement over the WFA provisions before notices are issued, he says. Collective agreements can include what deadline options and status rules may apply, all outlined in the applicable language.
Compliance risks of job guarantees
One of the main risks HR needs to be aware of with these notices, Murray says, is whether employers can provide a reasonable job offer. Once employees receive WFA notices with a guarantee that they might receive a job offer, employers cannot pull it back.
"If you aren’t sure or you kind of preempt it and you’re like, ‘Yeah, this will probably work,’ that’s where a major compliance issue will happen,” he says. “Somebody trying to pull it back and say, ‘Oh, damn, I didn’t think about all of these contingencies.’ That’s really the big one that I see happening.”
If an employer guarantees a job to someone and cannot follow through, they may have to bump another worker out of a role to fulfill it — and that carries its own cost and legal consequences.
While there can be a degree of "deference" and "leniency" in situations like this, Murray notes, employers still have to make a reasonable assessment at the trigger that prompts the workforce adjustment. The standard is not perfection — but it does have to be reasonable.
Why demographic precision matters
Last year, the Public Service Alliance of Canada (PSAC) published data showing that 71 per cent of members who were expected to receive workforce adjustment notices identified as women. . PSAC claimed the cuts were disproportionately impacting women workers in the federal public service, in a press release about the data.
Murray says employers need to be precise about what is being restructured and who is being given those notices. He notes that when employers are not clear about who is affected, they run the risk of blurring work — creating a situation where, down the road, someone points out that a function they used to perform is now being done by someone else under a different job title.
“I, if the entire population of the people that are receiving notice is of a specific demographic protected by human rights legislation, that’s obviously problematic. It doesn’t mean that it’s, in and of itself, unlawful. But I think that would give me, as counsel, cause for, like, ‘Aall right, let’s double-check this,’” he says.
Bring union in early as true partner
Many federal government members who receive these notices are unionized.
Murray says there is clear value in bringing in the union as a partner at an early stage of the process.. That does not mean treating the union as a mailbox that simply receives copies of the notices — but as a true, active participant.
"“They have a line of sight and an ear to the membership that the employer may not have. And so they may have considerations, options, and ideas in terms of mitigation,” he says.
