B.C. court decision in a remote-work case should put employers on notice
The office they are trying to bring employees back to may no longer exist — at least not legally
By Howard Levitt and Jenny Yu
Your empty offices might already be a contractual obligation.
For five years, employers have been trying to solve the same problem: how to get employees back into the office.
Many have discovered an unpleasant truth.
The office they are trying to bring employees back to may no longer exist — at least not legally.
A recent British Columbia Court of Appeal decision should send a chill through boardrooms and HR departments across the country. The court upheld a finding that an employer constructively dismissed a long-serving employee by requiring her to return to the office full-time after years of working remotely.
The cost? Nineteen months' pay.
The case illustrates a reality many employers still fail to appreciate: employment contracts are not frozen in time.
Most employees assume that the contract signed on their first day governs the relationship forever. In practice, employment contracts evolve quietly over years or even decades.
The reason is simple. Contracts are promises exchanged for promises. Those promises do not have to be written down.
Nor do changes to those promises.
Every day, employers alter the terms of employment. They change compensation structures. They expand responsibilities. They promote employees. They permit flexible schedules. They allow remote work arrangements.
Usually, nobody drafts a new contract.
Instead, both sides simply carry on.
And that is precisely where employers can get into trouble.
The employee in the B.C. case began her career in 2005 as a traditional office worker. Nothing unusual there.
Then life happened.
After the birth of her twins, she was granted flexible hours. As her children grew, additional flexibility followed. When she accepted a promotion to director of marketing, the employer specifically recognized that the position worked well with her flexible schedule.
Then came COVID-19.
Like millions of Canadians, she moved home.
Unlike many Canadians, she stayed there.
The employer not only permitted the arrangement but actively supported it. An executive helped her establish a home office. Her work-from-home arrangement continued even after other employees returned.
In 2023, the company approved her return to full-time hours while maintaining her remote status and flexibility to care for her children.
Two months later, however, the employer changed its mind and ordered her back to the office.
The courts effectively responded: too late.
After a decade of accommodation, flexibility and mutual understanding, the employee's ability to work remotely had become part of her employment contract.
The employer was not restoring the original arrangement. It was changing the existing one.
That distinction cost the company nineteen months of pay.
Many executives will find this result surprising. After all, the employee originally agreed to work in the office.
But employment law is filled with examples of yesterday's exception becoming today's entitlement.
An employee who is repeatedly permitted to work reduced hours will eventually acquire the right to do so. A bonus that begins as discretionary can become contractual. A temporary benefit will become permanent through repetition and mutual acceptance.
Remote work has joined that list.
This does not mean every employee who worked from home during COVID can now refuse to return.
Many modern employment agreements contain language expressly preserving the employer's right to determine work locations and working arrangements. Where those clauses exist and are properly drafted, employers retain considerable leeway. If the work-from-home arrangement contemplated returning to the office when the employer required it, that term will apply
The problem is that most contracts signed before 2020 never contemplated a world in which employees would spend years working from kitchen tables, spare bedrooms and cottage offices.
Those contracts are now being tested.
For employers, the lesson is straightforward. Before announcing another return-to-office mandate, ask a simple question: has remote work become part of the employee's contract?
The answer may depend less on what was signed 10 years ago than on what both parties have actually been doing ever since.
For employees, the decision is equally significant. Many assume they must comply whenever an employer demands a return to the office. That is not always the case.
Sometimes the commute itself is the constructive dismissal.
As companies continue their push back to office towers, one thing is becoming increasingly clear: the battle over remote work is no longer about productivity, culture or collaboration.
It is about contract law.
And many employers are only now discovering it's a battle they may have already lost.
Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers with offices in Ontario, Alberta and British Columbia. He practises employment law in eight provinces and is the author of six books, including the Law of Dismissal in Canada. Jenny Yu is an associate at Levitt LLP.