Remote Workers

Remote work became a more vibrant issue in the Covid era. Many employers may have mistakenly believed that this was a temporary change in the working relationship.

However, when work traditions change for extended time periods, without agreed terms in place that define these new customs as temporary and/or how they may be altered, employees may well view such new terms as fixed right. This may well lead to an argument of constructive dismissal when the mandate is delivered to return to the office on a full-time basis.

The issue may be more complicated when the remote work is performed in another jurisdiction in Canada. Generally, jurisdiction will be found in the province in which the employee is located. An Alberta company may be subject to Ontario law when the mobile worker is working in that province.

The statute on monitoring of employees work differs by jurisdiction as reviewed here.

Clearly the employer must have an agreement dealing with the terms of remote work. This will also deal with the obligation to return the employer’s equipment on termination of the relationship.

Ontario & Mass Termination

Ontario Bill 79 has amended the Employment Standards Act mass termination provisions to include remote workers in the count of employees required to reach the 50 employee threshold. The Act presently allows for enhanced notice of termination where 50 or more employees are terminated within a four week period at the employer’s “establishment”. Separate locations may be included to determine this count in specific situations, namely where distinct locations are included within the same municipality or seniority rights are extend to other locations.

The Bill will expand the definition of “establishment” to include the residence of the employee provided that the person is fully remote. In addition, such remote employees will be eligible for the enhanced notice compensation where applicable.

The Bill received royal assent on October 26, 2023 and became law on that date.

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David Harris — Canadian Employment Law

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