Remote working arrangements have been around long before the COVID-19 pandemic, albeit uncommon, but employers were generally careful in approving these arrangements for its employees. When the pandemic suddenly shut the world down in 2020, businesses were understandably overwhelmed with adapting to new challenges, and many did not implement clear policies on remote work. As time went on, some employees viewed remote work as a right while their employers believed they retained the right to recall at any time.  What happens when there’s disagreement?

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In Byrd v. Welcome Home Children’s Residence Inc. (“Byrd”), the employee, Ms. Byrd, moved to Europe during the COVID-19 pandemic due to her husband, a member of the Canadian Armed Forces, given a posting there. Ms. Byrd’s employer, which operated a care home in Ontario, initially permitted a remote-working arrangement from Europe but later changed its mind and mandated a return to the office. Ms. Byrd refused, and her employer provided her with an ultimatum: return to the office or resign. The Ontario court found that the employer’s conduct was a constructive dismissal of Ms. Byrd’s employment and awarded her 6.5 months’ pay in lieu of notice of termination.

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The Byrd decision had a unique set of circumstances and does not mean that employers cannot recall its remote-working employees to the office. At the trial, neither party could produce any documentation regarding the terms of the remote-working arrangement and both parties ostensibly had a different understanding of what was agreed to. Ms. Byrd believed she was permitted to work remotely for the entire duration of her husband’s posting. The employer believed it had retained a right to recall Ms. Byrd to the office at any time.  

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Finding in Ms. Byrd’s favour, the court considered that there was no credible evidence that the employer ever communicated a right to recall until approximately 20 months after Ms. Byrd relocated to Europe. In these circumstances, the court found that remote work from Europe had become a fundamental term of Ms. Byrd’s employment and her employer’s attempt to recall her to the office was a breach of that term.

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The Byrd decision can be contrasted with the pre-pandemic decision of Staley v Squirrel Systems of Canada Ltd (“Staley”). In Staley, a Burnaby-based employer permitted its employee, Mr. Staley, to work remotely from Montreal but promptly communicated to him, in writing, that the arrangement was only approved on a temporary basis. Within three months of his Mr. Staley’s relocation, the employer presented him with a written employment contract explicitly providing that he could be recalled to the office at any time. Mr. Staley rejected the written contract and was subsequently recalled to work at the Burnaby office. When Mr. Staley refused to return, the employer terminated his employment for just cause.

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Considering the documentary evidence available, the trial judge ultimately concluded that Mr. Staley’s refusal to return was just cause for termination. This finding was upheld by the BC Court of Appeal.

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The contrasting decisions in Byrd and Staley are a good reminder for employers of the importance of having clear workplace policies and reducing verbal agreements to writing. Had the employer in the Byrd case done this and set clear expectations, the employee may not have filed a lawsuit at all, or at the very least, the litigation would have had a much different outcome.

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