What a recent B.C. court decision could mean for remote work

In mid-May, the B.C. Court of Appeal upheld a decision finding that an employee of a Vancouver-based real estate development company was constructively dismissed when they abruptly ended her longstanding remote work arrangement and directed her to return to the office full time.

The Supreme Court of Canada defines constructive dismissal  when an employer unilaterally makes substantial changes to the essential terms of an employee’s contract that the employee does not agree to and leaves their job.

The plaintiff, Tracy Parolin, had had a flexible work schedule with her employer, Cressey Construction Corporation, since returning from maternity leave in 2013 after giving birth to twins, one of whom had a significant health issue, the appeal court decision says.

In March 2020, Parolin started working remotely along with the rest of Cressey employees due to the COVID-19 pandemic. When other employees returned to the office, she continued to work from home with the approval of successive supervisors who understood her childcare needs, the decision says.

But at a meeting to discuss a salary increase in May 2023, a new supervisor revoked her flexible work arrangement and directed her to return to the office full time. Parolin left her job shortly thereafter as a result, court documents say.

Cressey had argued there were no explicit terms in Parolin’s contract that stated she could work from home full time and/or outside regular hours.

But the trial judge sided with Parolin, finding that her flexible working hours had become an enforceable, fundamental term of her employment and had been supported for years by her employer.

The judge also found the company’s change to this arrangement was made unilaterally and without notice.

CBC News reached out to Cressey Construction Corporation, now operating under the name Cressey Development Group, for comment but did not receive a response.

In an interview, Parolin said the appeal court’s decision validated her feeling that what happened “wasn’t right.”

She said she hopes the case sheds light on the need for flexible work arrangements so that people can balance work and their personal lives, adding that having that flexibility “didn’t make me work less.”

“It allowed me to be fully in my role and work on my career and also be there for my family.”

The wave of return-to-office mandates has been “awful” for many parents who are not only facing extra expenses from commuting but also for childcare, said Allison Venditti, a Toronto-based human resources expert and founder of Moms at Work.

“This is a really big problem from multiple angles for people who are already struggling.”

Venditti said she’s monitoring a lot of legal cases surrounding remote work that are working their way through the court system, and she expects more will crop up as more and more Canadians are pulled back into the office.

“I tell everybody, just watch or sign up for updates on legal cases because, over the next 18 months, they’re going to be fast and furious.”

What’s interesting about Parolin’s case is that it demonstrates that remote work arrangements can become essential terms of employment, said Ryan Berger, an employment lawyer at Lawson Lundell LLP in Vancouver.

“So when organizations are considering remote work or changes to remote work, like a return-to-office mandate, then they need to be thoughtful about it.”

He said he expects lawyers representing employees will be paying attention to this decision and may try to argue their client is in a similar situation as Parolin.

“I’m sure we’ll see this case get cited across the country for that argument.”

Employers can’t ‘pivot too quickly’

Berger and other employment lawyers said the outcome in this court case doesn’t mean employers can’t ask employees to return to the office full time, but it does show what can go wrong if it’s not done carefully.

“This decision shouldn’t scare employers into the idea or concept that any return to work is going to lead to constructive dismissal”, said Sundeep Gokhale, a Toronto-based employment lawyer with Sherrard Kuzz.

“What it does do is highlight the mistakes an employer can make when they pivot too quickly.”

The case demonstrates employers need to be very clear about their expectations, Gokhale said, especially in cases where remote work might be used temporarily.

“What courts have established is that the location of the workplace is an absolute fundamental term and condition of employment.”

However, Vancouver-based lawyer Melanie Harmer, who practices employment litigation, said she thinks the court may have ruled in the employer’s favour if Parolin didn’t have the flexible work arrangement prior to the pandemic.

“For many employers, where they temporarily had their employees go home only because of the pandemic, they’ll be in a much better situation if they wish to call employees back to the office”, she said.

This article has been republished and is available on RCI.