Worker worked from home for 37 years before employer wanted her to 'return to the office'
“Employers need to be careful anytime they're implementing changes to an employee's contract and not just assume they can unilaterally make the changes they want.”
Those are the cautionary words for employers from Dylan Snowdon, a labour and employment lawyer at Carbert Waite in Calgary, after an Alberta court ruled that a long-serving employee was constructively dismissed when her employer tried to change her longstanding work-from-home arrangement.
The worker was the office manager for an Alberta vein clinic. Hired in 1986, she mostly worked from home right from the beginning, only coming into the office when needed and at her own discretion. During the course of her employment, the clinic changed ownership but she remained in her position.
In 2023, the clinic underwent another change in ownership and the new owners, Functionalab Group, Dermapure Canada, and FYI Medical Aesthetics, wanted to push for remote staff to work in the office. They told the worker that she was to transition to working from the office full-time within three months as part of the “return-to-the-office” initiative.
The worker countered that the requirement wasn’t a “return-to-office” for her, as she had always worked from home and that was part of her job description since she was hired. In addition, she said that it would be more difficult for her to work full-time in the office at the time because her husband had recently fallen ill.
Transition from remote work
However, the company insisted that the worker transition to full-time work at the office. The worker sought legal counsel, who took the position that the requirement to work full-time in the office was a significant change to the worker’s terms of employment and therefore was a constructive dismissal.
The company suggested that the worker come into the office 2.5 days per week to see how things went, with the company reserving the right to require full-time attendance if necessary in the future. The worker declined the offer and filed a wrongful dismissal action and an application for summary judgment.
The company argued that, if the worker was constructively dismissed, she was bound to accept the proposal of working 2.5 days in the office as mitigation of her damages.
The court determined that a summary judgment was appropriate on the constructive dismissal issue. It found that the worker, who had worked for 37 years at the clinic, was entitled to consider herself constructively dismissed after the company required her to begin working full-time from the office.
The court found that the transition to the office was initially characterized as a “return-to-the-office” initiative that was common after the COVID-19 pandemic, but this was was inaccurate given that the worker had always worked remotely and had attended the physical office only on occasion at her discretion. The work-from-home arrangement was “an integral part of the [worker’s] employment contract for the duration of her work,” said the court. Because of this, the court found that the worker was entitled to reasonable notice of the change, and the less-than-three-months’ notice provided wasn’t enough with the worker’s lengthy service.
Reasonable notice of change
Such a long-serving employee on specific working arrangements can't just have those working arrangements changed on very little notice, says Snowdon.
“If someone used to work in the office and then was allowed to work from home during the pandemic, the decisions on COVID-related return to work have largely looked at the terms of the arrangement and the contract,” he says. “But the starting point is, essentially, the pandemic was a temporary event - unless there's a contractual provision to the contrary -while there's nothing in this case that reflects working from home as being temporary.”
In addition, there was no evidence of any performance issues arising that could create a reason to change the long-term working arrangements, says Snowdon.
“Someone successfully doing their work for 37 years doesn't create a foundation for an argument that it's reasonable to compel this person to come work at the office - it just seems to be a preference of a new owner,” he says.
The court disagreed with the company that the worker’s failure to accept the proposal to work 2.5 days a week in the office was a failure to mitigate because the company still would have the right to increase it to full-time in the office - which was the change in the terms of employment that the employee had already rejected. A reasonable observer wouldn’t expect the worker to accept that offer, which was made after the constructive dismissal had already happened, said the court, noting that the worker still had the normal obligation to make efforts to mitigate her losses from the dismissal.
“The court said basically that the employer doesn't have the right to unilaterally make fundamental changes to an employee's contract, whether they try and do it by imposing it directly or framing it as a mitigation offer, which it really wasn't,” says Snowdon.
Constructive dismissal
The court determined that the company constructively dismissed the worker when it required her to transition to full-time office duties on short notice. It invited the parties to make additional written arguments before deciding on the appropriate notice period and damages, noting that there has been a shift in judicial approach that allows assessment of wrongful dismissal damages in summary proceedings, referencing recent case law.
Ultimately, if the company wanted to bring the worker into the office full-time after so long, it should have taken more of a back-and-forth discussion approach, according to Snowdon.
“They’re going to want to have some clear communication with the worker on the goals of the new owner and a discussion about why a change may be required,” he says. “And for a 37-year employee, we're giving an extensive amount of notice of the change and explaining the rationale, and then giving the worker an opportunity to speak to the impact on her and whether she needed any accommodation.”
