Return to Office Mandate Deemed Constructive Dismissal

An applications judge of the Court of King’s Bench of Alberta recently held that an employer’s “return” to the office mandate amounted to a constructive dismissal.

Constructive dismissal may occur when an employer unilaterally changes a fundamental term of employment without the employee’s consent. In these situations, the employee may reject the change and claim constructive dismissal.

In Nickles v 628810 Alberta Ltd. (“Nickles”)[1], the first issue for determination was whether the employee was constructively dismissed. The second issue related to mitigation and whether the employee was required to accept her employer’s offer of a hybrid work schedule.  

Nickles, an office manager of 37 years’ service, was directed by her employer to work from the office. Prior to the COVID pandemic, Nickles had always worked from home and had attended the office at her own discretion only when she felt it was necessary. After Nickles rejected her employer’s mandate, the employer suggested that Nickles work from the office 2.5 days per week, subject to the employer reserving the right to require full-time office attendance in the future.

Given that Nickles had always worked from home, the Court held that her arrangement to work remotely was an integral part of her contract of employment. As such, the employer’s mandate to work from the office was a unilateral change to a fundamental term of Nickles’ employment and resulted in a constructive dismissal. The Court distinguished the longstanding work arrangement in Nickles from remote working arrangements that developed during the pandemic:

“This was not a return to work arrangement of the type that was common after the COVID pandemic. The COVID return to work template does not fit this paradigm. This was an arrangement where the work was always from home. I am satisfied that the work from home arrangements were an integral part of the plaintiff's employment contract for the duration of her work and that she was entitled to reasonable notice of the change. The notice given was less than three months for a 37 year employee. I am satisfied that there was a constructive dismissal.”

The employer argued that Nickles ought to have mitigated by accepting the offer of working in the office 2.5 days per week with the possibility of further office time being imposed in the future. The Court rejected this mitigation argument, holding that it would indirectly provide the employer with the fundamental change that it originally intended, ignoring the employee’s options that arise at law.  However, the Court confirmed that the traditional mitigation responsibilities continued to apply.

In terms of litigation procedure, the Court acknowledged the cultural shift that encourages the use of summary judgment applications and held this case was appropriate to determine on a summary basis.

Key Implications

Employers should be aware of the following implications presented by this case:

-          Constructive dismissal cases may be appropriate for summary judgment, if the record is sufficient and largely consists of written communications;

-          Careful consideration is required when contemplating a unilateral change to a fundamental term or condition of employment;

-          An employee may not be obliged to mitigate by accepting an employer’s job offer that indirectly achieves the same fundamental change that resulted in constructive dismissal; and

-          As more employers transition back to in-person or hybrid work arrangements, they must carefully review the facts relating to each employee.

The content of this article is intended to provide a general guide to the subject matter. Legal advice should be sought about your specific circumstances. If you require assistance, please connect with our Labour and Employment team.