March 24, 2025 from Benefits Canada
A recent decision from Ontario’s small claims court has raised important questions about the legal risks of recalling employees from remote work. The case centered around Lesley Byrd, an Ottawa-based employee of Welcome Home Children’s Residence Inc., who successfully sued for constructive dismissal after being ordered to return to in-person work following over a year of remote employment.
Byrd had worked with Welcome Home since 2018, eventually being promoted to manager of clinic support in 2019. In May 2020, when her husband was posted to Belgium for military service, the organization approved her request to work remotely—an arrangement that lasted more than 20 months without issue.
When the company later issued an ultimatum to return to the Ottawa office or resign, Byrd brought a claim of constructive dismissal—and won.
No Written Contract, No Clear Recall Clause
Deputy Judge Caroline Kelly emphasized the absence of a written employment agreement and the employer’s failure to provide timely notice of any right to recall. Since Byrd had been working remotely without complaint for nearly two years, Kelly found that the arrangement had become an established part of her employment.
Judge Kelly wrote that
“Here, there was no credible evidence that the defendant communicated a specific right to recall the employee until March 2022 (approximately 20 months after the employee’s move). A fundamental term such as a right to recall an employee from Europe to work in person in Ottawa calls out for clear and timely notice to the employee.”
This lack of communication and formal documentation led the court to conclude that Byrd had been constructively dismissed.
Remote Work: Benefit or Binding Term?
Not everyone agrees with the ruling. Puneet Tiwari, partner at Levitt LLP and counsel for the employer, argued the court misunderstood the nature of the remote work arrangement. Tiwari commented that
“If the location of your workplace is a term of employment, then changing it—like any other fundamental term of employment—can give rise to a constructive dismissal. But if working remotely is merely a benefit of your employment, then it’s not a fundamental term.”
The case was eventually appealed and settled out of court, and as a small claims decision, it does not carry binding legal precedent. However, legal experts agree the case offers an important lesson.
Remote Work Agreements Matter
Mark Van Ginkel, a senior associate at Filion Wakely Thorup Angeletti LLP, advised employers to clarify the terms of remote arrangements up front.
“Employers should ensure that they set the term of the arrangement in writing to minimize the risk of liability,”
Van Ginkel noted in a client bulletin.
“Where an employee requests a hybrid or remote work arrangement, if granting that request, the employer should consider entering into a remote work agreement that reflects the employer’s expectations and specifically sets out the right to recall the employee to in-person work.”
Takeaway for Employers
As remote and hybrid work becomes more common, so does the legal complexity surrounding it. This case highlights the importance of proactive communication and clearly documented policies. Without written terms and well-defined expectations, even seemingly flexible work arrangements can open the door to constructive dismissal claims.
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