Working from home should come with written agreement
By the summer of 2020, Bernice had worked for a care home for two years.
She was a manager of clinical support and reported directly to the owner. She was a very valued employee. The owner was devastated to learn Bernice’s husband, who was in the armed forces, was being posted to Belgium.
Bernice was so valued that the employer allowed her to work remotely from Belgium without any change of pay.
A year later, Bernice took a clerical job on the military base where her husband worked on a full-time basis. She did not tell the owner, but just kept working remotely and getting her work done. She was paid on an hourly basis.
Through the fall of 2021, Bernice worked both jobs and was working 30 to 40 hours a week for the care home.
In January 2022, the owner told Bernice that, effective immediately, she would only be paid for 15 hours a week and was not to work more, without special permission. Many of her duties had been transferred to an on-site manager in Canada.
By mid-February, the employer stopped giving Bernice tasks and there were no further hours for her to log or for which she could be paid. Bernice hired a lawyer, as it was her position that the sudden reduction in hours constituted a constructive dismissal and she was entitled to severance. The employer’s lawyer, in March, indicated that Bernice could keep working for the company if she showed up on-site. That, of course, was impossible.
In her constructive dismissal suit, Bernice claimed these changes constituted a termination without the words being said. She claimed 6.5 months’ notice, about $25,000.
The judge noted a constructive dismissal occurs when an employer makes a unilateral and fundamental change to a term or condition of an employment contract without providing reasonable notice of that change. Of course Bernice got no notice of the reduction in hours and no notice of the suggestion she should be showing up for work in Canada.
The employer claimed Bernice was told, when the posting occurred, that they would try the remote-work arrangement “until it did not work any more.” Bernice had worked remotely for 13.5 months before things started to change, and the judge found that had become a fundamental term of her employment. The employer tried to claim Bernice taking a second job was somehow a breach of the terms of their relationship, but the employer themselves had provided Bernice with a reference letter to look for an extra job.
At one point during the trial, the employer tried to claim that with the pandemic having passed, it was the employer’s right to call Bernice back to work. Bernice’s remote-work arrangement, however, had nothing to do with the pandemic.
It should be noted that even if a work-from-home arrangement was a direct result of the pandemic, smart employers gave their employees significant advance notice of the return to work or hybrid arrangements to avoid constructive dismissal suits.
Bernice ended up getting $19,000 out of the $25,000 she was looking for.
Employers agreeing to work-from-home arrangements would be well served to get an agreement in writing and provide a legally enforceable notice period for ending the agreement. Many people, once they have gotten the taste of working from home, are loathe to return. Lawsuits often follow.
This article was originally published by The Hamilton Spectator.
