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| Stuart Rudner |
So, who gets to decide? The usual answer is “it depends,” but to be more specific, the decision will be the employer’s unless the employee has some sort of contractual right to work remotely.
Every employee has a contract. Some are written, and many are verbal. If there is nothing in writing, the terms of employment will be established by a combination of verbal discussions, terms implied by law and past practice.
Many employment contracts don’t specify where the employee will work, but they should. If the contract says that the employee will work in the office, then the employer is entitled to insist that they do so. Conversely, if it says they can work from home permanently or part of the time, then they clearly have that right. Similarly, if someone has been working from home for two days a week since 2015, then at some point they accrued that right, unless the employer retained discretion to insist that they return to the office full time.
Of course, many have been working remotely since March of April 2020, but that was out of necessity and caused by a global pandemic. Back then, we naively thought that it would be a matter of weeks before things returned to normal. We are now over two years into it and many workers are still at home, though the “return to the workplace” discussion is in full swing now.
Our firm has seen a number of conflicts, with workers refusing to return to the workplace. Our message has been simple: absent some sort of pre-existing right, an employee cannot dictate where they work or insist that they will work from home. That is true even if they can do their work just as effectively while remote. The default is that the employer dictates where an employee will carry out their duties.
As an aside, as time goes on, allowing employees to continue to work from home when it is no longer mandated by the government may give rise to an argument that the parties have effectively changed the terms of the relationship. If the employee can establish that working remotely went from a necessary response to unanticipated circumstances to a choice, then they may be able to assert that the right to work from home has become a term of their contract, and the employer cannot unilaterally change it; to do so would be a constructive dismissal. To avoid this, employers should clearly communicate that remote work is only continuing as an interim measure as a result of COVID-19, and that the workers will be expected to return to the office in the future.
What can an employee do if they are being told to return to the office but don’t want to? The first thing would be to check your contract; if it gives you any right to work remotely, then you can rely on that. Otherwise, you can have a frank discussion with your employer and see if you can agree upon a plan whereby you would work remotely either entirely or at least some of the time. Many employers have seen the cost savings of reducing their office space and are willing to have people work remotely so long as they work efficiently. Furthermore, in the context of the current labour shortage, many workers have a negotiating advantage; if you are a good worker, your employer will want to keep you and may be willing to negotiate the location of your work rather than lose you.
Do not do what some have done: assume you can work remotely forever and move to another city. We have helped several clients dealing with such situations, and the reality is that unless the employer is willing to negotiate, they can insist that, wherever you live, you must be in the workplace during working hours, or your employment will end. Remember that unless you have a right to do so, you can’t simply decide you will not go to the office anymore.
If you are an employer facing workers who do not want to go back to the pre-pandemic normal, consider the pros and cons of remote work or a hybrid arrangement. This is a bigger issue than one worker; it is an opportunity to reassess how your organization works. Do you need to have everyone in the office all the time, or are there benefits to a different arrangement? Once you consider that, you can address individual situations.
Whatever you decide, communication is critical. We have helped several clients through these situations, either to negotiate a new contract or insist that the employee return to work, failing which they will have effectively abandoned their job.
In 2019, it would have been ludicrous to ask what happens if an employee insisted on working from home rather than come in to work as they always had. While a lot has changed in a few short years, not everything has. Employees have not gained a new right to unilaterally change the location of their work. We usually talk about constructive dismissal and the fact that employers can’t unilaterally change the terms of employment; the same applies to workers.
Stuart Rudner is a leading Canadian employment lawyer and mediator at Rudner Law. He is the author of You’re Fired! Just Cause for Dismissal in Canada. He can be reached at 905-209-6999 or stuart@rudnerlaw.ca.
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