Constructive Dismissal and back to work: The Risks of Modifying Conditions for Employers & Employees

Back to work is becoming the new norm as more and more companies are imposing a return to the office, marking the end of permanent remote work. Employers beware: changing working conditions is different from changing company policies. How well do you know the distinction?

In a recent decision, the Administrative Labour Tribunal ruled on a case that raises important questions about the rights of employees regarding unilateral changes to their working conditions. The case[1] of Guérard v. SamaN Inc. highlights issues for businesses trying to transition employees back to work.

Quick Facts

The complainant, after 20 years of service as a sales representative, saw her role change following new ownership of the company. She became responsible for production coordination and was informed that her new tasks had to be completed exclusively from home. A few months later, her remote access was blocked, followed by a request from the employer that she now work at the plant or return to her old position, which she refused.

Faced with this disagreement about going back to work, the employer stopped paying the salary. The complainant then filed a complaint for constructive dismissal under section 124 of the Act respecting labour standards.

A Substantial Change is Equivalent to a Dismissal

The lesson for employers: the Tribunal ruled that the changes imposed constituted a “substantial modification” of working conditions. These actions were characterized as constructive dismissal, despite the employer’s claim that the complainant had resigned by refusing the new conditions.

This decision illustrates a well-established rule: when an employer unilaterally and materially changes the terms of an employment contract, the employee’s departure can be interpreted as a dismissal, not a resignation.

Modify the Employment Contract or Company Policy?

We often see confusion between changing a company policy and changing an individual employment contract. While policies can be adjusted to reflect organizational needs, an employment contract is a legal agreement between the employer and the employee. Unilaterally changing the latter, without consent, can lead to significant legal consequences, including allegations of constructive dismissal. Therefore, it can become a major issue when trying to navigate back to work directives. A careful and informed approach is essential to avoid such pitfalls.

The remote-work policy can be modified according to the employer’s management rights. Here are some reminders for business leaders and HR professionals:

1. Clearly communicate the reasons for the change, explaining the operational or strategic needs justifying the return to the office.
2. Update the remote-work policy by complying with applicable laws and notifying employees within a reasonable period of time.
3. Offer support to ease the transition, such as flexible hours or adapted logistical support.

The balance between flexibility and respect for rights

This decision reminds us that poorly managed practices can lead to costly litigation. For HR professionals and managers, the challenge is to find a balance between organizational needs and respect for employee rights when bringing staff back to work. Proactive management, transparent communication and procedural justice are essential to maintain trust and prevent conflicts.

Do you have any doubts? Consult the profiles of our consultants to discuss them.

Note: Iceberg Management is not a labor law firm. Our consultants will guide you from a human resources management perspective.

[1] Source: Administrative Labour Tribunal. 2024 QCTAT 3718 (CanLII) | Guérard v. SamaN Inc. | CanLII