By: Stephanie McDonald and Baljinder (Bal) Singh Tiwana
As Ontario workplaces continue adjusting to post-pandemic realities, many employees now face a major shift: employers are requiring a return to the office—even after long-standing and successful remote work arrangements.
This blog explores whether an employer’s decision to mandate in-office work could amount to constructive dismissal under Ontario employment law. We also outline your legal rights and options if you’re facing pressure to return to the office, so you can make an informed decision moving forward.
What Is Constructive Dismissal?
In short, constructive dismissal occurs when an employer substantially and unilaterally changes a fundamental term of your employment agreement without your implied or express consent. This could make continued employment unworkable, forcing the employee to claim that their employment has been constructively terminated.
Does a Return-to-Office Mandate Amount to Constructive Dismissal?
The most important documents to consult include your employment contract and any applicable workplace policies.
A lawyer can help review your contract and analyze the following:
- Does the agreement clearly identify your primary place of work?
- Does it include language about remote, flexible, or hybrid work?
- Did your employer implement remote work as a temporary or time-limited solution?
If your contract stipulates the primary office as your main workplace, your employer typically retains the right to call you back—provided the request meets the requirements of the Ontario Employment Standards Act and does not amount to a failure to accommodate under the Ontario Human Rights Code.
What If the Contract Is Silent or Vague?
If your contract doesn’t specify a work location i.e. is vague about the specific work location and you’ve worked remotely for a long time with your employer’s approval, the situation becomes more complex.
Over time, a consistent and employer-supported remote arrangement can become an implied term of your employment agreement. In such cases, forcing a sudden return to the office—without the employee’s agreement—may significantly undermine the employment relationship, and breach a fundamental term of the employment agreement. This change could support a claim for constructive dismissal.
What Do Ontario Courts Consider?
When assessing a constructive dismissal claim, Ontario courts consider several factors, including (but not limited to) the following:
- The language of the employment contract. If the contract fails to specify the key work location i.e. the key term is ambiguous, you may have a ground to challenge the enforceability of the contract.
- The duration and consistency of the remote working arrangement
- Whether the employer supported or encouraged remote work
- Whether you performed your duties effectively from home
- Whether a requirement to return to the office amounts to a failure to accommodate under the Ontario Human Rights Code
If your remote setup becomes a key part of your job and your employer tries to revoke it without notice, the Courts may view that as a breach of your employment contract.
What Can You Do If You Want to Stay Remote?
If your employer mandates a return to the office and you believe the change is unreasonable, the following steps may assist:
- Start a Conversation: Share your concerns in writing and ask for clarification about the timing and reasons behind the change.
- Negotiate: Suggest alternatives, such as a hybrid schedule or phased return.
- Document Everything: Keep records of all communications and agreements about remote work.
- Review Your Employment Terms: Consult an employment lawyer to assess whether remote work has become a contractual or implied term.
- Know Your Legal Options: If the change substantially impacts your role, legal advice can help you evaluate whether a constructive dismissal claim is appropriate and what the best next steps are to take.
- Consider Other Opportunities: If returning to the office is not practical or desirable, you could explore alternative roles that align with your working preferences.
Conclusion
Whether a mandated return to the office could amount to a successful constructive dismissal claim depends on the specific facts of your situation. Courts in Ontario will assess the entire employment relationship, including how long you worked remotely, whether the employer accepted or encouraged the remote work arrangement, and whether it became an essential aspect of your role. The Courts will also assess the overall impact that a mandated return to the office would have on you, especially in relation to any disability or family-status related workplace accommodations.
If you’re unsure about your rights or feel pressured to return to the office please contact us or book a consultation with Workplace Sage Legal. We can help you understand your legal options, protect your interests, and assist you in making informed decisions about your next steps.
DISCLAIMER: This article/blog is provided for educational/informational purposes only. The views expressed are solely those of the author(s) and should not be attributed to any other party not listed as the author(s).
While reasonable efforts have been made to ensure the accuracy of the content provided, it does not constitute legal advice. Prior to relying on any aspect of this article, you should consult with a suitably qualified legal professional promptly in your relevant jurisdiction, to obtain advice tailored to your individual circumstances
Nothing in this article should be interpreted as forming a solicitor-client relationship or construed as a solicitation for legal services.
