Back to (In-Person) Work: Can a Return-to-Office Order be Constructive Dismissal?
Following the end of COVID-19 lockdowns, many employees who had grown accustomed to working remotely were asked to return to in-office work, either full-time or in a hybrid format. Earlier this year, many government employees in Ontario were ordered to work in-person five days per week, which has been met with protests by workers’ unions as well as workers themselves.[1] Some people have questioned whether forcing employees to work in-person after years of remote work is “constructive dismissal”: a change to the employment contract so severe it effectively terminates the employment relationship and is a form of wrongful dismissal.
Whether the in-person mandate qualifies as constructive dismissal depends on whether the ability to work remotely is an accepted and integral part of the job. Such claims will be stronger the longer the remote conditions persist, and if the employer previously took steps to support the employee’s ability to work remotely. However, the employee will hold the burden of proof.
Remote Work Must Be Fundamental to the Employment Contact
Potter v New Brunswick Legal Aid Services Commission sets out the main principles regarding constructive dismissal.[2] One way it can occur is through a unilateral act that breaches the essential nature of the contract, indicating that the employer no longer seeks to be bound by it. The change needs to be one that the employer has no express or implied ability to make, and which the employee does not consent to.
For remote work to be an essential term of the contract, returning to in-person work needs to more than inconvenience. If there are reasonable alternatives to leaving one’s job, and those options were not taken, courts will be less likely to find in favour of the employee. KD v Canada Employment Insurance Commission involves a plaintiff who relied on remote work to meet her childcare obligations.[3] Her claim failed as she could have continued working until she found a different job, rather than quit immediately. In-office work was her standard pre-lockdown, so remoteness was not a fundamental term that had been breached. A constructive dismissal claim is more likely to succeed where remote work was seen as fundamental requirement prior to the work-from-home mandate of the COVID-19 pandemic.
Fundamental Terms Are Decided by Established Conduct
One reason employees might consider remote work important is the time and cost of travelling to the office, especially if they live far away. However, greater difficulty getting to work is not necessarily a fundamental breach if the work terms mostly remain the same: see Hicks v 1210841 Ontario Limited.[4] The plaintiff’s travel expenses were covered by his employment contract, making the change an inconvenience that did not give rise to constructive dismissal. Hagholm v Coreio Inc. found that an employee was constructively dismissed when, after working mostly remotely for 22 years, she was required to transition to work in-office full-time.[5]
In Hagholm, the court determined that the plaintiff’s right to work from home was essential to her contract, with no reported issues during the many years it was in place. Therefore, the employer constructively dismissed her when it tried to change those conditions without giving her proper notice, which is a key requirement for unilateral changes as the employee needs reasonable time to accommodate.
Employees Do Not Have to Accept Unreasonable Mitigation Offers
Employees are still expected to mitigate (minimize) their losses upon wrongful termination, which usually means trying to secure another job right away with similar terms. Conversely, employers cannot impose an unfair offer on their workers and expect them to comply. If an offer requires in-office work for someone who has traditionally been a remote worker, an employee can reject this and claim constructive dismissal. This was the case in Hagholm, in which the plaintiff was not obligated to return to work as part of mitigation. The court in Hagholm held that the employer’s offer contained no terms allowing the plaintiff to continue working from her home office, and so she was within her rights to refuse it.
Depending on the circumstances of your remote work, and how your workplace treated the subject in the past, you might well have a claim for damages. If you believe you have been constructively dismissed, Walker Law’s experienced employment litigation team is here to help. Please don’t hesitate to reach out to us for an initial consultation.
Tags: Employment Litigation Law, Civil Litigation Law.
[1]“Ontario government workers set to return to office full time as of this week”, The Canadian Press
[2] Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10
[3] KD v Canada Employment Insurance Commission, 2025 SST 324
[4] Hicks and 1210841 Ontario Limited, 2014 CanLII 87065 (CA LA)