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THE QUESTION
When I joined my current company in 2022, my manager agreed to make it a permanently remote role. However, it wasn’t written in my employment contract that it would be remote-only, which I regret not pushing back on because the company is now implementing a hybrid work policy. My commute would be more than two hours, one-way, three days a week. Does my manager’s verbal agreement to a fully remote role have any sway over maintaining my remote status? I would have never taken this job if I knew it’d be a hybrid role.
THE FIRST ANSWER
Ashley Heisler, employment lawyer, Forte Workplace Law, Surrey
Your manager’s verbal agreement to a fully remote role holds potential weight, even if it’s not in your written employment contract.
If your remote work arrangement was established at the start of your employment, was a key benefit that influenced your decision to accept the job and has been the norm for the past two years, it could be a fundamental term of your employment. When an employer unilaterally changes such a fundamental term of your employment without your consent, this change can amount to a “constructive dismissal.” Constructive dismissal often occurs when an employer makes a significant change to a key term of your employment, making it unreasonable for you to continue working and effectively forcing you to resign.
In your case, you could argue that the shift to hybrid work is unreasonable and potentially constitutes constructive dismissal. This position may be a strong negotiating tool to persuade your employer to allow you to continue working remotely. If you are later forced to resign, you may also be able to claim constructive dismissal and seek damages, such as severance pay. The amount of severance pay would depend on your written contract, provincial laws and similar past court decisions.
If your need to work from home is related to a protected ground under applicable human rights laws – such as a disability or child care obligations – your employer may be required to accommodate this need. Employers must provide reasonable accommodations related to protected grounds, provided these do not cause undue hardship, meaning they are not excessively costly or burdensome. Given your two-year history of remote work, proving undue hardship would likely be challenging for your employer.
In all scenarios, your best next step would be to consult an employment lawyer for personalized advice on your signed contract, your right to claim constructive dismissal and your entitlement to workplace accommodations.
THE SECOND ANSWER
Lai-King Hum, founder and senior lawyer, Hum Law Firm, Toronto
It depends. A verbal agreement of fully remote work is still binding. If you can prove the verbal agreement for remote work, your employer cannot unilaterally change this arrangement; if not, you might be able to claim constructive dismissal if you would not have taken the job otherwise. Altering a fundamental term of your employment (work location) without consent can be seen as a significant breach of contract.
However, proving the existence of a verbal agreement can be challenging. Courts will consider the broader circumstances and context in which the verbal agreement was made to determine its validity. Based on the information provided, it seems the significant commute time supports your argument that you would not have accepted the job if it had been a hybrid role.
Therefore, it is important to gather any supporting documentation, such as emails or text messages related to the remote work arrangement. It is also crucial to examine your written employment contract to see if it includes a clause that allows the employer to change your work location. Additionally, review any relevant company policies to see if there is any provision for remote work.
Further, to strengthen your position, communicate with your manager to confirm the original remote work agreement and document these discussions. If you can find it, look to see if the original job posting mentions the work location.
For more guidance, consult with an employment lawyer to explore your options and ensure your rights are protected.
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