Return-to-Office & Constructive Dismissal: What Municipalities Needs to Know

When workplaces transitioned to work-from-home models in March 2020, the move felt temporary. Five years later, hybrid schedules and kitchen-table workstations have settled into routine. As employers push for more in-person collaboration—whether to boost service levels, mentor new hires, or simply revive the office feel—human resource representatives must remember that the workplace “location” is no longer a matter of convenience; it can be a binding term of employment. Changing it abruptly may put the municipality at risk of a constructive-dismissal claim.

Constructive Dismissal—The Primer

An employee is constructively dismissed when the employer, without consent or reasonable notice, makes a fundamental change to the employment relationship—or behaves in a way that signals it no longer intends to be bound by the employment agreement.

Courts take an objective view: would a reasonable person in the employee’s shoes see the change as a repudiation?

If the answer is yes, the employer may be liable for damages in lieu of reasonable notice of termination for a wrongful dismissal—even if no formal termination occurred.

Additionally, if an employment agreement is found to have been repudiated, any termination clause intended to limit notice entitlements may no longer be enforceable. As a result, an employee who is constructively dismissed could be entitled to common law reasonable notice—often significantly greater than the minimums provided under the Employment Standards Act, 2000 or a written contract.

3 Ways to Avoid Constructive Dismissal:

• Plan Ahead – Include flexible language in the original employment agreement or collective agreement to account for future operational changes.
• Provide Reasonable Notice – The more advance notice you give regarding a material change, the less likely it will be considered constructive dismissal.
• Offer Consideration – If you are introducing a new agreement or materially changing terms, provide consideration (e.g., a bonus or raise). However, note that employees are not obligated to accept a new agreement.

Why Location Counts as a “Key Term” of an Employment Relationship

For many employees, pandemic-era remote work has solidified into the daily norm. Courts have started treating extended remote arrangements as implied contractual terms where:

• the employee worked off-site for months (or years) with the employer’s knowledge; and
• the employer never reserved the right to recall.

Ordering a full or partial return, on short notice, can trigger a constructive dismissal. In other words: this may constitute a unilateral and fundamental rewrite of the employment relationship. Even hybrid compromises may not fix the breach if the worker’s role has always been 100% remote.

However, this does not mean municipalities are stuck with work-from-anywhere forever. Rather, it does mean that human resource representatives must treat the work location with the same care it devotes to salary or title—plan the change, document the business rationale, and communicate early.

7 Practical Steps for Remote Work Arrangements

1. Put everything in writing

• State plainly whether the position is home-based, office-based, or hybrid.
• List regular hours, location rules, and whether the arrangement is fixed-term or open-ended.
• Get employee acknowledgment in writing.

2. Add a recall clause

• If you might need everyone back on site, reserve that right explicitly.
• Insert the clause in the contract or a stand-alone remote-work agreement or policy and have the employee sign off.

3. Update employment agreement templates

• Update boilerplate language to match current remote and hybrid realities.

4. Do not make quick changes

• Offer reasonable advance notice before changing an established work-from-home setup.
• A jump from full-remote to full-office without notice can amount to constructive dismissal.

5. Respect long-running practices

• Multi-year remote arrangements often become implied terms of employment.

6. Keep the message consistent

• Communicate flex-work expectations and any upcoming changes in clear, consistent, written updates.

7. Account for individual context

• Shape remote-work terms around each role’s duties, the employee’s history, and operational needs.

Return-to-office directives are more than just operational adjustments—they can effectively rewrite the employment contract overnight. By treating the work location as a core term—either by contracting for flexibility up front or providing reasonable notice when changes arise—municipalities can avoid costly and time-consuming legal disputes.

At Zubas Flett Liberatore Law LLP, we are here to help. Whether you are implementing upcoming changes, reviewing existing practices, or drafting compliant agreements and policies from the ground up, we are ready to support your team every step of the way.

Written by Jordan Bailey