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Recalling Work From Home Employees to the Office

The COVID-19 pandemic has fundamentally changed workplaces across Ontario. Many workplaces have switched to work from home models to ensure those businesses can continue to operate despite re-occurring shutdowns of non-essential services. With COVID-19 vaccinations becoming easily accessible to the public and shutdowns lifting once again, many businesses will have the opportunity to re-open and operate from a physical location. With so many businesses operating under the work from home model, non-unionized employees and employers in Ontario may have questions regarding the risks of bringing employees back to the workplace – so, can employers recall work from home employees to the office?

What is a Constructive Dismissal?

At law, a constructive dismissal comes about when the employer engages in actions that demonstrate it no longer wishes to be bound by the terms of the employment agreement or if it unilaterally and substantially changes a fundamental term of the employment agreement without proper notice or consideration. More generally, it’s a dismissal through actions of the employer rather than through express statements.

A constructive dismissal can further apply to aspects of the employment relationship that were not explicitly mentioned in the employment agreement, if they were understood to be fundamental terms of employment. This can come about from a long period of condonation of the unofficial policy from the employer.

Risks of Recalling Work From Home Employees to the Office

The question of whether an employer can recall work from home employees to the office, or, workplace, is one that will become increasingly relevant as businesses are able to physically re-open. We can gain an idea of how the court may rule in such a situation by looking at the Ontario Court of Appeal case Hagholm v. Coreio Inc. from 2018.

As some background to Hagholm, the employee was initially permitted to work from home three days per week. The original employer was then purchased by Coreio Inc. who demanded the employee return to working from the office full time. The employee then sued for constructive dismissal and had been successful. This decision was based on the fact that working from home for three days per week had become an essential term of the employment agreement as the employee followed these terms for at least twenty years.

It is unclear whether the same principles would apply to the recall of work for employees working from home due to the COVID-19 pandemic. If there is no clear remote work policy specifying the employer can bring the employees back to work, there could be risks that working from home could be considered a fundamental term of employment and subject to a constructive dismissal should the employer unilaterally change the employee’s method of work. A constructive dismissal could be very costly to the employer, as they may be ordered to pay significant damages for pay in lieu of notice.

An employer seeking to implement a remote work policy should consult with an employment lawyer to ensure it is drafted in a manner that can protect the employer from liability should they need to recall employees to the physical workspace.

Contact Us

If you are an employer considering recalling your work from home employees to the workspace, or an employee being recalled to the workspace from working from home, our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected] and we would be happy to assist.

If you are a small or medium-sized company looking for full-service support with same day response, visit our CLO Program page for our strategic solutions.