As remote work becomes a fixture in Ontario’s employment landscape, employers and employees alike are facing new legal questions about the right to recall staff to the office. A recent Ontario case, Byrd v. Welcome Home Children’s Residence Inc., offers important guidance for anyone navigating a return-to-office directive after an extended period of remote work.
What Happened in Byrd v. Welcome Home Children’s Residence Inc.?
In this case, an employee had worked for her employer since 2018, initially in-person. When her spouse was posted overseas with the Canadian Forces in 2020, the employer agreed to let her work remotely from Europe. This arrangement continued for over a year, with no written contract or formal policy reserving the employer’s right to recall her to Canada. After more than a year of successful remote work, the employer demanded that she return to in-person work or resign. When she refused, the employer took steps to limit her hours and responsibilities, ultimately giving her an ultimatum: return or leave. The employee resigned and brought a claim for constructive dismissal.
The Ontario Superior Court of Justice (Small Claims Court) found in favour of the employee. The court ruled that the remote work arrangement had become an essential term of her employment. Because the employer had not reserved the right to require a return to in-person work, the unilateral demand to return was a fundamental change to her employment contract. The court concluded this amounted to constructive dismissal, entitling the employee to damages.
What Does This Mean for Ontario Employees?
This decision has significant implications for Ontario employees who have been working remotely for an extended period:
- Remote work can become a fundamental term of employment. If you have been allowed to work remotely for a long period, especially with no written agreement stating otherwise, your employer may not be able to force you back to the office without your consent.
- A sudden recall can be a constructive dismissal. If your employer tries to unilaterally change your work location after remote work has become the norm, you may have grounds to claim constructive dismissal and seek damages.
- Document your arrangement. Keep records of any agreements or communications about remote work and note any lack of written recall rights.
What Should Employees Do If Asked to Return?
If you are facing a recall to the office after working remotely:
- Review your employment contract and any written policies about remote work.
- Document all communications with your employer regarding your work arrangement.
- Do not resign immediately. Consult with an employment lawyer to assess your rights and options.
- Communicate your concerns in writing and seek clarification about the reasons for the change.
Lessons for Employers
Employers should ensure that remote work arrangements are clearly documented, including any right to recall employees to in-person work. Failing to do so can expose the business to constructive dismissal claims and liability for damages.
Conclusion
The Byrd decision underscores the importance of clarity and communication in remote work arrangements. For Ontario employees, a recall to the office after a long period of remote work may not be as simple as an employer directive. Both parties should understand their rights and obligations before making or responding to significant changes in work location.
To better understand your employment rights, we encourage employees and employers to seek legal advice. We at Whitten & Lublin are happy to provide insight and advice into your specific circumstances. If you are looking for employment lawyers and would like more information about what Whitten & Lublin can do for you, please contact us online or by phone at (416) 640-2667 today.
Author – Rachel Patten
