Axing 'work from home' agreement significant change to job terms
By Kirsten McMahon, Associate Editor
In today’s work culture where alternative arrangements and flexible hours are becoming increasingly common, revoking an employee’s ability to work from home may be considered a constructive dismissal, says Toronto employment lawyer and mediator Kumail Karimjee.
He tells AdvocateDaily.com these types of constructive dismissal cases typically involve office relocations.
“If you are working in Toronto and your employer says you have the same job, but it's now based in Montreal, there’s a strong argument for clear constructive dismissal,” says Karimjee, a partner with employment law boutique Karimjee Greene LLP and the principal of Karimjee Resolutions Inc.
With advancements in technology, alternative work arrangements are sometimes offered as a perk or to accommodate an employee.
“There are many reasons why companies are offering these arrangements — work from home arrangements can reduce overhead and limit its environmental footprint,” he says. “For employees, it's valuable for a host of reasons. For an employer to take that away could be constructive dismissal.”
Which is what happened in one recent Ontario case where the plaintiff was employed by the defendant for 22 years, working from home three days a week and two days in the company’s office. The plaintiff was advised she had new reporting requirements, a reduction in her bonus, and she could no longer work from home three days a week. She claimed to have been constructively dismissed.
“By far the biggest factor to consider in deciding whether or not the plaintiff was constructively dismissed, is the fact that after 22 years of being allowed to work three days out of five at her home in the Waterloo Region, and two days at the defendant’s office in Vaughan, Ont., she was ordered to work only from the defendant’s office,” the decision states.
“It was therefore acknowledged by the defendant that there was a considerable distance between the plaintiff’s home and the defendant’s office and that it was essentially a condition precedent to the plaintiff agreeing to the employment contract, that she would be able to work from her home office three days a week,” it continues. “Therefore, it appears that even if there is nothing in writing between the parties, there was an oral agreement that induced the plaintiff to go to work for the defendant in 1995, and the performance of that term of the agreement continued until January 2017.”
The court found that based on her 22 years of service, the plaintiff was entitled to 22 months of salary in lieu of notice, less 1.5 months for a net 20.5 months’ salary as damages.
Karimjee, who was not involved in the matter and comments generally, says the threshold for constructive dismissal is when an employer makes a significant change to a fundamental term or condition of an employee's employment without their consent.
“While revoking an employee’s arrangement to work from home could be construed as constructive dismissal, a situation where an employee is asked to relocate offices within the same geographical area would be much more difficult to prove,” he says.
“If a company is moving offices within the Greater Toronto Area, for example, a court will be less likely to accept that as a constructive dismissal given that people do regularly commute long distances for work,” Karimjee says.