By: Karina Pogosyan
Two-and-a-half years on from the start of the Covid-19 pandemic, we see that in-person work isn’t dead after all. Many organizations choose to move from a fully remote to a hybrid model of operations, with some that may even wish to ask staff to attend the office full time.
It is generally recognized that an employer has the right to manage its affairs, including the right to determine where employees perform their work. Thus, except in cases of properly supported employee accommodation (not covered in this article), an employer can properly direct employees to return to the office.
Nonetheless, this general employer right to manage its workforce is not without exceptions and, if exercised incorrectly, can land employers in trouble with employees claiming constructive dismissal. In this article we provide a non-exhaustive overview of some of the pitfalls that may expose employers to such claims:
1. Employer representations about working from home
If remote or hybrid work arrangement is promised as a condition of employment, whether verbally or in writing, it can be a term of employment, and employers must honour it. In these circumstances, the employer cannot unilaterally alter the work arrangement without breaching the employment contract. Therefore, it is always important to ensure that any provisions respecting work arrangements included in the contract contain a carve-out that reserves the employer’s right to modify the arrangement depending on the needs of the business.
2. Beware of implied contract terms
All employment contracts contain both express and implied terms. An implied term forms part of the contract even though it was neither written into the contract nor discussed. For example, if the contract is silent as to place of work or recall rights, and the employee has always worked remotely, then it is arguable that remote work is an implied term of the employment contract. Consequently, the risk for a claim of constructive dismissal would be particularly high if the employer hired an employee to work remotely, knowing they lived far away from the office, and later asked them to start working at the office.
On the other hand, where the employment contract is silent as to location of work and the employee had always worked from the office and only worked remotely during the pandemic, it could be an implied term of the employment contract that the employee will work from the office when in becomes safe to do so, if requested by the employer. However, if the employer delays asking the employee to return back to the office for a prolonged period of time after it is deemed safe, it is possible that remote work could become a new implied term.
3. Health and Safety Considerations
Even though employers may have a general right to have employees return to the office, such a requirement may only be enforceable if it is reasonable and ensures the health and safety of the workforce in compliance with the Ontario Occupational Health and Safety Act (OHSA). Return to work mandates in the face of evidence suggesting that the risk of infection remains high are less likely to be defensible if challenged. Thus, employers must always strive to be reasonable in their directions to the workforce, particularly when the consequence of non-compliance could result in discipline or termination of individual employees. On the other hand, if an employer is in compliance with all the post-pandemic public health guidelines and workplace safety measures, then the return-to-work measures will less likely be offside.
The takeaway: each assessment is case specific
The above noted pitfalls only provide a broad overview of some of the considerations that would need to be assessed to determine if an employer’s return to work mandate could potentially expose it to constructive dismissal claims. This is a situation-specific analysis that will necessarily have to take place on a case-by-case basis.
Seabrook Workplace Law lawyers are here to assist your organization with implementing a smooth transition back to the office and are available to answer any questions regarding constructive dismissal risks that may arise along the way.
