By Chris D. Drinovz

‍

In Cressey Construction Corporation v. Parolin, 2026 BCCA 199, the British Columbia Court of Appeal confirmed that workplace arrangements established through the conduct of the employer and employee can become binding terms of an employment contract, even where they are not recorded in writing. The decision provides important guidance for employers considering changes to long-standing remote work or flexible work arrangements.

‍

Background

Tracy Parolin was employed by Cressey Construction Corporation for 18 years, ultimately serving as Director of Marketing. Over the course of her employment, her working arrangements evolved to include flexible hours to accommodate childcare responsibilities and, beginning in 2020, a full-time remote work arrangement. In 2021, after her reporting manager left the company, senior management expressly confirmed that she could continue working from home so long as her work continued to be completed satisfactorily. She remained a full-time remote employee for approximately three years.

‍

In May 2023, after Ms. Parolin requested a salary increase, Cressey instead directed her to return to the office on a full-time basis. Ms. Parolin treated the unilateral return-to-office directive as constructive dismissal and commenced a wrongful dismissal action.

‍

The trial judge concluded that both the flexible hours and remote work arrangement had become terms of Ms. Parolin's employment through the parties' longstanding agreement and conduct. The judge further found that the remote work arrangement had become an essential term of the employment contract and that Cressey's unilateral decision to require Ms. Parolin to return to the office without her consent or reasonable notice constituted constructive dismissal.

‍

The trial judge awarded 19 months of notice.

‍

Appeal Decision

The Court of Appeal upheld the trial court decision. Applying the principles established by the Supreme Court of Canada in Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10, the Court confirmed that constructive dismissal occurs where an employer unilaterally breaches the employment agreement by substantially altering an essential term of employment.

‍

The Court found that Ms. Parolin's right to work remotely was an express oral term of her employment contract and, in the circumstances, an essential one:

[67]      Ms. Parolin sought permission to work from home and as detailed above, Cressey agreed. Ms. Parolin then worked from home for three full years…In addition, the oral work from home term was not complicated, was clearly understood by the parties and was therefore sufficiently certain to be enforceable.

‍

The Court also confirmed that a reasonable person in her position would have viewed the mandatory return-to-office requirement, imposed without notice, as a substantial change to the terms of her employment. In describing why the return-to-work mandate was a substantial change, the Court held as follows:

‍

[88]      Ms. Parolin had been working from home with Cressey’s approval for approximately three years. Her work from home situation allowed her to fulfil her childcare responsibilities and scale up her hours to full-time work. Cressey was aware of Ms. Parolin’s ongoing childcare needs. A change to her location of work, without notice, would have had a significant impact on her ability to manage her childcare and work responsibilities, and it is reasonable to conclude, objectively, that someone in her circumstances would have seen this as a substantial change to her contract.

‍

The decision underscores that employment contracts are shaped not only by written agreements, but also by the parties' ongoing conduct.

‍

Key Takeaways

‍

• Employers should take care to ensure that any flexible remote work arrangement is captured in writing, with clear language preserving the employer’s right to require attendance at the workplace on reasonable notice. It is better to communicate expectations clearly rather than relying on a mere assumption that the arrangement was always meant to be temporary.
  ‍
• Employers contemplating a return-to-office policy, particularly for employees with long-standing remote work arrangements, should provide meaningful advance notice and engage in substantive dialogue with affected employees before implementing any such change.

‍

Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter please contact one of our group members. We communicate all these updates to our clients and readers on our Employer Resources Portal and through monthly Newsletters.

‍