Ogletree Deakins lawyer examines best practices for avoiding constructive dismissal claims
More than two years since the COVID-19 pandemic forced closures around the world, many employers are implementing return-to-office plans or weighing up the value of a remote workforce or hybrid policy. According to a recent report released by recruiting firm Robert Half Canada, more than half of employees in Canada currently working from home would look for a new job that offers remote options if their company required employees to return to the office five days a week – so any new policies must be carefully considered to avoid losing valuable staff.
There are many challenges and legal considerations for in-house counsel as these policies take shape. Avoiding claims of wrongful dismissal or constructive dismissal is one of the most significant concerns for employers, according to Hugh Christie, managing partner at the Toronto office of Ogletree Deakins. These claims can depend on a number of factors including how far the employee has moved from the workplace, the reasons for not wanting to return, and any documentation that was previously provided about a work-from-home model during the pandemic.
“If an employer unilaterally makes fundamental changes to the work conditions, then the employee is in a position to say ‘I don’t want that job anymore and I want you to act as if you had terminated my employment’,” says Christie.
The single strongest tactic that an employer can use to avoid constructive dismissal claims is to give reasonable notice, in Christie’s view. Another strong tactic is to ensure that expectations are put in writing to employees, as this can be used in front of a judge in the event of a claim.
Other problems have arisen for employers surrounding employees that chose to relocate to different provinces to work remotely during the pandemic. For example, if an employee moved from Ontario to Nova Scotia, the employer may still be making deductions and remittances in Ontario if they were not aware of the move, thus creating tax problems. If the employer was not aware of the employee’s remote location, the correct taxing authority may not have been informed. It can also create problems in the event of a constructive dismissal claim.
“If someone has moved to Nova Scotia, does an employer who has absolutely no connection to that province need to defend the case brought in Halifax claiming constructive dismissal? It raises a bunch of quirky legal issues,” says Christie.
In an ideal scenario, the employer will have put the terms and conditions of the remote working arrangement in writing in advance. Best practices for in-house counsel planning a back-to-work policy include sending details of the new working arrangements to employees in advance of any changes.
“Make sure you give them plenty of notice so you can fulfill the requirement of giving reasonable notice, and lower the financial risk for the employer,” advises Christie.