Return-to-office (RTO) mandates continue to be contentious workplace issues in Canada. While many employers are pushing for in-person work, some employees view remote work as a core part of their job. This tension is increasingly showing up in legal claims, most notably, constructive dismissal claims.
What Is Constructive Dismissal?
Constructive dismissal occurs when an employer makes a unilateral and fundamental change to a key term of employment without the employee’s agreement. If constructive dismissal occurs, the employee can treat this as a termination and seek compensation.
Historically, this applied to major changes like compensation or job duties. Today, work location is often being treated as a fundamental term, especially if an employee has been working remotely for many months or years.
When RTO Becomes a Legal Risk
Employers often assume they can require employees to return to the office as an inherent right. In some cases, that is true, particularly where contracts clearly state that remote work is temporary and the employer may force a RTO as their right.
However, risk arises when, amongst other things:
- The employee has worked remotely for an extended period.
- The arrangement was never framed as temporary.
- The employer did not reserve the right to change the work location, in writing.
In these situations, remote work may become an implied term of the employment relationship. A sudden RTO mandate in these circumstances can be seen as fundamentally changing the contract of employment, and thus, potentially equate to constructive dismissal.
Courts in Canada have already found that forcing employees back to the office after long-term remote work can amount to constructive dismissal. The key issue is whether the change significantly alters the employee’s working conditions.
Notice Is Critical
Even where an employer has some flexibility to implement an RTO policy, providing little or no notice increases legal risk. Abrupt announcements or rigid deadlines are far more likely to trigger legal claims.
Not All RTO Policies Are Problematic
It is important to note that not every RTO mandate will lead to constructive dismissal.
Employers are on stronger footing where:
- The employment contract clearly requires in-person work at the behest of the employer.
- The employment contract clearly allows the employer to enforce a RTO mandate.
- Remote work is explicitly temporary and/or has a fixed end date.
- The employer regularly enforces the contractual provisions, and the employee at issue does not begin absorbing work-from-home rights overtime as implied in their contract.
Ultimately, the analysis is highly fact-specific and depends on the history of the employment relationship.
Practical Takeaways
Before implementing or enforcing an RTO policy, employers should:
- Review contracts to confirm what they say about work location.
- Avoid sudden change and provide clear, advance notice.
- Set expectations early if remote work is not permanent.
- Communicate transparently about business reasons for the change.
- Consider accommodations where required under human rights law.
The Bottom Line
RTO decisions are no longer just operational; they carry real legal risk. For many employees, remote work is no longer a perk, it is part of the employment bargain.
Employers who attempt to roll back remote arrangements without careful planning may face more than employee resistance. They may face constructive dismissal claims.
In today’s environment, a thoughtful and strategic approach to RTO is essential. Contact us for expert guidance!
