Office Recall Leads to Constructive Dismissal Claim
Do you have an employee who was sent home to work during the pandemic and was never required to return to the office? Are you starting to believe that either part-time or full-time presence by that employee in the office is required? Are you wondering how you might achieve that goal without getting into trouble? Consider Vanessa’s story.
Vanessa began working for a construction company in 2005. In April of 2013 she was scheduled to return from a maternity leave during which she had had twin daughters. The employer needed her back and asked if she was willing to come back full-time. Vanessa agreed to come back four days a week and claimed it was agreed that she would need a flexible work schedule moving forward to allow for child-care responsibilities. In 2018, Vanessa was promoted to director of marketing and told she would be considered for a pay raise at a later date.
Like everyone, Vanessa was sent to work from home starting in March 2020. Almost all the other employees returned to the office eight weeks later, but Vanessa was allowed to continue to work from home. The promised pay raise was delayed and denied year after year.
Eventually, in early 2023, Vanessa spoke to a lawyer about the matter and the employer found out.
In May 2023, the employer met with Vanessa and told her she was getting a $1,400 a year raise and was required to work in the office, 9 to 5, Monday to Friday.
Vanessa refused and brought a lawsuit for constructive dismissal claiming pay in lieu of notice based on her age, seniority and level of responsibility as well as $50,000 in punitive/bad faith damages. She thought the employer was just taking retribution because she had spoken to a lawyer and was pressing for a raise.
A constructive dismissal takes place when a significant change is made to the terms of an employee’s employment contract without reasonable notice.
Contracts are not always in writing. A judge can conclude that “contractual” terms evolve as a result of dealings between the parties over time without anything ever being put down on paper.
It had clearly become a term of Vanessa’s employment contract that she be able to work from home and have flexible hours.
Changing that aspect of her contract was significant. This wasn’t like adjusting somebody’s lunch break or benefits plan.
It is not as though employers can’t make changes, but they have to do so with reasonable notice. In Vanessa’s case, the judge concluded that she was entitled to 19 months’ notice of her termination. If the employer had simply given Vanessa a letter indicating that 19 months from the date of that letter she would be required to work from the office from 9 to 5, Monday to Friday, there is nothing she could have done. It would have been a significant change to the terms of her employment, but she would have received reasonable notice based on her age, seniority and level of responsibility.
Although the judge thought Vanessa’s employer had treated her badly, no punitive damages were awarded as those are only awarded in exceptional cases of bad faith.
Still, it cost the employer 19 months’ pay, its own legal costs and much of Vanessa’s legal costs.
If you want to require an employee to increase their office presence dramatically, plan ahead. Give them reasonable notice of the change.
This article was originally published by The Hamilton Spectator.
