A lot can change in five years.
This time five years ago, employers and employees were frantically adjusting to the “new normal” brought on by the COVID pandemic, including novel work-from-home arrangements. But by the time that public health restrictions were winding down towards the end of 2022, many workplaces had learned to embrace these arrangements, citing such factors as improved work-life balance and employee morale.
However, as most employment lawyers and HR professionals will confirm, the story today is much different. In recent months, there has been a noticeable push by employers to bring employees back to the office in the name of productivity, collaboration, networking, mentorship, skill development and a variety of other justifications. Predictably, this push has resulted in pushback from some employees.
The legal question is whether return-to-office mandates give rise to constructive dismissal risks. Constructive dismissal occurs where an employer has not expressly terminated an employee’s employment, but a termination can be interpreted – or “constructed” – because the employer has unilaterally made a substantial change to the essential terms of an employee’s (written or unwritten) contract (a test established by the Supreme Court of Canada in Potter v. New Brunswick Legal Adi Services Commission, 2015 SCC 10).
Until very recently, the answer to this question was entirely unclear, thanks to a lack of judicial precedent. However, a trio of recent decisions...
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