Revocation Of Telecommuting Agreement Deemed To Be Constructive Dismissal feature image

Revocation Of Telecommuting Agreement Deemed To Be Constructive Dismissal

The idea of telecommuting – or working remotely from home – is appealing to many people, particularly those seeking to avoid the high cost of living in major cities. In a recent case before the Ontario Superior Court of Justice, an employee who had a long standing agreement to be able to telecommute had her ability to do so revoked by her employer. As a result, she sought a summary judgment motion from the courts, claiming the employer conducted a constructive wrongful dismissal against her.

The employee quits after 35 years

After ten years of working for the employer, the employee moved from Toronto to Waterloo in 1992, quitting her job because the commute was not feasible.  Two years later the employer asked her if she would return on a six month contract, something she agreed to do. At the conclusion of the contract the employer recruited her to come back full time. They were successful in their recruitment efforts after agreeing that she could work from home three days per week. The employee enjoyed this benefit for 22 years. In 2015 the employer’s company was sold to new owners, who advised the employee on January 16, 2017, that she could no longer work from home three days per week. The employee resigned on March 1 of that year, citing her new schedule, reporting requirements, and a reduction in her bonus as her reasons for quitting. She claimed to have been constructively dismissed.

The employee, who was 60 years old when the case went to trial, had worked for the employer for 35 years. In 2016 she had the title of Manager, Consulting Services, a position she entered into in 2001. She made an income of $112,000 along with a bonus of $72,000 and the opportunity to earn more in bonuses. She submitted that in January 2017 the employer demoted her to the role of Resource Manager Advisory Services Division, while at the same time increasing her workload. She alleged they also micromanaged her job performance, unilaterally reduced her bonus, and took away her right to work from home three days per week (with no new compensation for time spent traveling or car allowance).

The employer countered the employee’s claims. Focusing on the end to her ability to telecommute, the employer argued the employee’s telecommuting arrangement was not a term and condition of her employment, but simply a preference they had accommodated. The notion of telecommuting was nowhere in her employment contract or her employment file, and she was the only employee who enjoyed that type of arrangement. The employer claimed their new operation model and recent acquisition of the company, having the employee available in-person to attend group working sessions meant her attendance in the office was necessary. They also claimed the employee took no steps to engage with them in a dialogue about the changes, instead resigning without trying the new arrangement.

The court’s analysis

The court began its analysis by stating the “biggest factor to consider in deciding whether or not the (employee) 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 (employer’s) office in Vaughan, Ontario, she was ordered to work only from the defendant’s office.”

The court pointed out that the employee’s home was 100km from the employer’s office, and that she would have to travel on the incredibly busy, and potentially dangerous, Highway 401 if she were to commute daily. Doing so would likely add three hours to her work day. In addition to the time spent commuting, the employee would also incur expenses related to driving 220 km each day.

While acknowledging that there was nothing in the employee’s contract establishing her right to telecommute, the court wrote “on the facts of this case which are not seriously in dispute, this is virtually an impossible position for the defendant to succeed on.”

The person, who was a Vice President at the time, who re-hired the employee in 1995 provided an affidavit stating “it was eventually agreed that she would work from home three (3) days a week, and attend at the (employer’s) offices two days a week.  I understood, from speaking with (the employee) at the time, that this was essential for her, and without an agreement that she could work from home a significant amount of the time, she would not have accepted the offer of employment.”

The court determined that this oral agreement amounted to an acknowledgement by the employer that she would be able to work from home three days per week. And “Therefore, it appears that even if there is nothing in writing between the parties, there was an oral agreement that induced the (employee) to go to work for the (employer) in 1995, and the performance of that term of the agreement, continued until January 2017.

The court awarded the employee 22 months of salary in lieu of notice as well as $11,261 to compensate for the reduction in her last bonus.

The employment team at HMC Lawyers has the experience and knowledge to help you in the event you have been wrongfully dismissed from your employment. We handle both mediation or arbitration as avenues towards settling wrongful dismissal disputes, but litigate for our clients when neccessary. Please call us at 1-800-480-3534 or reach us online to schedule a consultation. We represent clients in Calgary, Alberta and the across Western Canada.


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