When I joined a new company last year, the position was stated in my contract as being hybrid with two days a week in office, plus a “workcation” policy which allowed us to work remotely for a week after a minimum week-long vacation. My parents live in a different city, so this was an enticing perk. However, my employer has now cancelled the workcation policy. If it was in the contract when I took the job, should my employer still honour their original “workcation” policy?
The first answer
Jonathan Dowhaluk, partner, Taylor Janis Law Group, Edmonton
If you are a non-unionized employee, you cannot compel your employer to honour the terms of your employment agreement. You can either accept it or resign and sue your employer for constructive dismissal. However, before you choose, you should be aware of a few things.
Legally, employers are entitled to make reasonable changes to an employee’s hours of work or work schedule. Constructive dismissal will only arise when the employer unilaterally alters an essential term of the employment agreement.
Is the workcation policy an essential term?
The first step is to look at your employment agreement. Although your employment contract may reference the workcation policy, it will typically also contain a variation clause enabling the employer to make reasonable adjustments to your duties, responsibilities or work schedule. If your employment contract contains a variation clause, the employer is deemed to have the authority to revoke the workcation policy — so long as they acted in good faith.
If your contract doesn’t contain a variation clause, the court will then have to decide whether your decision to resign and sue for constructive dismissal was reasonable. To determine this, a court will need to evaluate at the totality of the circumstances surrounding your employer’s decision to revoke the workcation policy.
Here are a few general principles:
- Constructive dismissal will likely occur when an employer does not have a legitimate business reason for making substantial changes to an employment contract or is deemed to have implemented changes in retaliation for non-performance reasons.
- Industry norms matter. If industry norms have changed, requiring employees to attend work to effectively do their jobs, this would favour the position of your employer.
- Timing is the most critical piece. After an employer introduces a change to the employment relationship, the employee only has a short window of time to reject this change or else they will be deemed to have acquiesced to it. If you have experienced a change to your employment agreement that you are unhappy with, you should seek legal advice within two weeks from the time that you were given notice of that change.
The second answer
Balraj K. Dosanjh, employment lawyer, Cavalluzzo LLP, Toronto
Generally, an employer can amend their workplace policies so long as the change is not contrary to the terms of your employment contract or human rights legislation and you receive sufficient notice of the change in the case of any substantial change to your job. Though your employment contract sets out your entitlement to a “workcation,” the contract may also include language reserving the employer’s right to determine where you work or the right to make changes to their policies—either of which could permit the employer to eliminate this policy.
However, sometimes employers make changes to a job which can reasonably be viewed as a significant change. Employees are entitled to receive sufficient notice of this type of change prior to the employer implementing it and if sufficient notice is not provided, the impacted employee may have a claim of constructive dismissal. Whether the change at issue is “substantial” and the amount of notice the employer is required to provide are factual questions, depending on factors such as the nature of the position and the employee’s years of service. If you believe the elimination of the workcation policy is a significant change to your job, you should voice your concerns to your employer at your earliest opportunity because otherwise you may not be entitled to notice if you condone the change.
In every case, human rights legislation may limit what an employer could do. For example, if the workcation policy is an accommodation for human rights purposes (for example, to accommodate an employee’s disability), the employer may not be able to eliminate the workcation policy if there is no other reasonable accommodation available for the employee.
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