As employers across Canada continue to implement return-to-office mandates, a recent decision from the British Columbia Court of Appeal serves as an important reminder that workplace flexibility, if maintained over time, can evolve into an enforceable term of employment.
The decision highlights a key employment law principle: employers may have the right to change workplace arrangements, but how those changes are introduced matters.
The Background
In Parolin v. Cressey Development Group, the employee had worked under a flexible work arrangement for approximately a decade following her return from maternity leave. Over time, her employer accommodated modified hours and remote work arrangements that enabled her to balance work responsibilities with significant family obligations.
When the COVID-19 pandemic began, she transitioned to working remotely alongside other employees. However, even after others returned to the office, she continued working from home with the knowledge and approval of successive supervisors.
In 2023, a new supervisor directed her to return to the office full time. The change was made unilaterally and without notice. The employee resigned and commenced a constructive dismissal claim.
Both the trial court and the British Columbia Court of Appeal found in the employee’s favour, concluding that the longstanding flexible work arrangement had become a fundamental term of her employment relationship.
When Flexibility Becomes an Employment Term
Many employers understandably view remote work arrangements as operational decisions that can be adjusted as business needs evolve.
However, this case illustrates that workplace practices can, over time, become enforceable terms and conditions of employment, even where they are not expressly set out in a written employment agreement.
Courts may consider factors such as:
- The length of time the arrangement has been in place
- Whether the arrangement was consistently approved by management
- Whether employees relied upon the arrangement when organizing their personal lives
- Whether the employer communicated that the arrangement was temporary
- The extent to which the arrangement became part of the employee’s expectations regarding their employment
The longer an arrangement continues without qualification, the greater the risk that it may be viewed as fundamental to the employment relationship.
Return-to-Office Policies Require Careful Planning
Importantly, this decision does not mean that employers cannot require employees to return to the workplace. Rather, it serves as a reminder that employers should approach return-to-office initiatives thoughtfully and strategically.
Employers considering changes to remote work arrangements should:
- Review employment agreements and workplace policies
- Assess whether existing arrangements were intended to be temporary or permanent
- Consider whether advance notice may be appropriate
- Evaluate individual circumstances on a case-by-case basis
- Clearly communicate expectations and implementation timelines
- Seek legal advice before making significant unilateral changes
A one-size-fits-all approach may create unnecessary legal risk.
The Importance of Clear Documentation
The decision also underscores the importance of maintaining clear documentation regarding workplace flexibility arrangements.
Where remote work arrangements are intended to be temporary, employers should communicate this explicitly and ensure policies reserve the organization’s right to modify workplace expectations as operational needs change.
Similarly, employers should periodically review workplace policies to ensure they accurately reflect current practices. When policy and practice diverge, disputes can arise.
Final Thoughts
The Canadian workplace continues to evolve, and employers are navigating increasingly complex questions regarding flexibility, productivity, employee expectations, and operational needs.
While employers retain the ability to manage their workforce and determine how work is performed, significant changes to fundamental terms of employment must be approached carefully.
The Parolin decision serves as an important reminder that flexibility extended over time can create legal obligations that employers may not have anticipated.
As organizations continue to refine their return-to-office strategies, proactive planning, clear communication, and regular policy reviews remain essential tools for minimizing legal risk.
How Minken Employment Lawyers (Est. 1990) Can Help
Whether you are an employer or a professional navigating Return-to-Office Mandates, understanding your legal obligations is critical.
We regularly advise employers and employees on constructive dismissal claims, workplace policies, remote work arrangements, return-to-office initiatives, and employment law compliance.
Contact Minken Employment Lawyers (Est. 1990) today for a confidential consultation at 905-477-7011 or contact@minken.com to connect with our team.
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Please note that this article is for informational purposes only and does not constitute legal advice or opinion.
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