For the vast majority of Canadian employers of “white collar” workforces, working from home arrangements became a necessity over the past two years to comply with COVID-related requirements. Employees embraced remote work – some even taking the opportunity to travel and work in other provinces or countries, sometimes with employer consent but often without it. While many employers have transitioned to flexible or “hybrid” working arrangements, employers are confronting employees who refuse to return to work full time or even on a hybrid schedule.
Employers need to remember that the courts can conclude that the right to work from home/remotely is a fundamental term of the employee’s employment, in which case requiring an employee to return to the office could be a constructive dismissal entitling the employee to severance. In determining whether the right to work from home/remotely is a fundamental contractual term, a court will consider the circumstances leading to the remote working and the communications and conduct of the parties. The more indicators that the remote working arrangement is permanent (e.g. specific language in an agreement or letter), or even that the employer allowed the employee to act like it was, the more likely it is that a court would find that it is a fundamental term of the employee’s employment.
That being said, most employers clearly only allowed remote working arrangements either because it was required by law or as a workplace safety measure. In those cases, unless the employer indicated remote working would be permanent, or allowed an employee to assume that and act on that assumption (e.g. by allowing/not objecting to the employee purchasing a home in a remote community), the employer will have the right to recall their employee to the workplace. If the employee refuses to return, an employer will have the option to terminate that employee for just cause.
In a case predating the pandemic, the BC Court of Appeal found that an employer had just cause to terminate an employee who was working remotely in Montreal. The employee moved to follow his spouse, who had secured a transfer to Quebec. When the employee asked for permission to work remotely, the employer advised that the company’s president required time to consider the decision but that he could do so in the meantime. After some deliberation, the employer directed the employee to return to their Burnaby office and gave him several months’ notice to do so. When the employee did not return by their deadline, the employer terminated their employment for cause.
The court found that, despite the absence of any written agreement, the parties’ conduct reasonably suggested that it was a term of the employee’s employment that he would work at the employer’s British Columbia office unless otherwise agreed. The court held that there was no assurance that the arrangement would be permanent and that the employer did not agree to nor condone (i.e. accept tacitly by not objecting) the move. As the employee had no right to continue working remotely, the employer’s direction that he report for duty in Burnaby was a reasonable one. Thus, his refusal was an act of disobedience and insubordination amounting to just cause.
In addition to the above, employers must also consider any Human Rights related reasons for refusing to work that might trigger the duty to accommodate e.g. a disability. While we cannot cover those issues in detail in this blog post, human rights considerations can further complicate the decision to recall employees to the office.
Employers who are recalling workers to the workplace after lengthy periods of remote work must also give reasonable advance notice to allow employees to adjust their lifestyle and family obligations.
We recommend that employers seek legal advice before imposing an ultimatum to return to the office.
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