BC Court of Appeal Rules Full Time Return to Work at the Office is a Constructive Dismissal

More than six years since the onset of COVID-19 and the explosion in remote work it sparked, workplaces are still navigating the fallout of remote work arrangements. The British Columbia Court of Appeal recently addressed the question of whether an employer can impose return to working full time in-office from a work-from-home arrangement could be considered a constructive dismissal – and the answer was yes.

In Cressey Construction Corporation v. Parolin, 2026 BCCA 199,  the 18 year employee plaintiff had worked as a Director of Marketing for Cressey in office, eventually moving to flexible part time hours to accommodate childcare duties.  During COVID, employees at Cressey were required to work from home until June 2020, when most returned to in-office work.

Ms. Parolin was exempted from returning to work in-office due to both her childcare responsibilities and health concerns she had for her children. Sometime later, she resumed full-time hours still working from home. The court found the parties had orally agreed to this arrangement.   Critically, nothing in Ms. Parolin’s employment agreement or other written employer document reserved Cressey’s right to recall her to work in the office.

In May 2023, when the parties met to discuss Ms. Parolin’s long outstanding request for a significant pay increase to align with pay with that of other Marketing Directors in the industry, Cressey offered only a modest pay increase. This was well below Ms. Parolin’s expectations, with Cressey arguing her duties were more that of a Marketing Manager, hence the low increase. More importantly, Cressey demanded that she immediately return to full time in-office work on a 9:00 a.m. – 5:00 p.m. schedule. Following this meeting, Ms. Parolin considered herself constructively dismissed and filed a lawsuit against Cressey.

Ms. Parolin was successful at trial, with the judge finding that the unilateral imposition of full time return to the office, together with the low pay increase and other actions amounted to a “demotion” and constructive dismissal.  The Court of Appeal held that Cressey’s demand for Ms. Parolin to return to in-office work alone was a constructive dismissal, irrespective of her perceived “demotion” or loss of flexible hours. This groundbreaking decision confirms that, even where an employee had long worked in the office before COVID and despite the fact that other employees had already returned to work, once the employer allows hybrid or full time remote work to continue beyond the COVID period (and without explicitly reserving the right to require return to the office), the right to work from home essentially becomes a vested significant employee right which cannot be removed unilaterally and immediately.

For employers, one troubling aspect of the trial decision was the judge’s view that offering Ms. Parolin a low pay increase could form part of the constructive dismissal and be characterized as a “demotion” despite no reduction in title or duties. This aspect was not explicitly upheld or rejected by the Court of Appeal. Since it is well established under employment law that, unless otherwise agreed, there is no contractual right to any increase in pay (even over several years as in Ms. Parolin’s case), much less a fair one or to be paid “market” wages, this trial ruling may not ultimately be upheld in later cases.

The judgment also demonstrated how difficult it is for employers to prove a “failure to mitigate” i.e. failure by the employee to take the legally required steps to reduce her loss of income by seeking other employment, which can lead to a reduction in the severance awarded. Following her dismissal, rather than looking for a comparable job in marketing, Ms. Parolin became involved in two businesses that sought unsuccessfully to purchase and redevelop properties, something she had never done. Her experience was only as a Project Manager then Director of Marketing. Neither project yielded any income, perhaps predictably. This case is inconsistent with others which have reduced severance awards in situations where an employee fails to first explore comparable employment opportunities and launches new and risky business ventures in which they have no prior experience. It effectively encourages recently dismissed employees to start risky new ventures during their notice period.

Key Takeaways for Employers:

1. Employers should not assume that they have free rein to order employees on work-from-home arrangements to return in-office, even where the arrangement was merely started orally and then allowed to continue.
2. Generally, if remote work rights are allowed to continue for any significant time beyond the original reason for it is no longer applicable (e.g. COVID restrictions on in-office work ending), they will become a vested protected employee right UNLESS the Employer has, either in a clear policy statement or in an employment agreement, reserved its right to cancel or amend these arrangements.
3. Best practise when allowing employees or even one employee to start or continue remote work is to:
   1. Explicitly state that the remote work privilege can be withdrawn or reduced, e.g. on 30 days’ notice;
   2. Have and communicate to employees a “Remote Work Policy” with the same language; and
   3. Ensure any general announcements granting of remote work privileges (e.g. “Work from Anywhere Summer Fridays”) contains a similar caveat.
4. If your organization did not put these in place but wants a remote employee to return to the office:
   1. Consult with the employee on what they might accept: if the employee agrees for example to return to the office 3 days a week, record that and avoid any constructive dismissal claim;
   2. If that is not possible, get legal advice on how to give enough advance notice and/or impose a graduated return to office over time such that a court will not find a constructive dismissal;
   3. Remember, even a change from full time remote to full time in office can be imposed with the same advance notice as would be required on termination of employment, whether the notice is stipulated in an Employment Agreement (as we recommend) or, if not, their common law RNP.

Note that different considerations apply when reducing remote work rights of unionized workers.

In short, never unilaterally impose a major reduction in remote work privileges without getting advice from an experienced employment lawyer.

For more details, please contact us:

Geoffrey Howard:            ghoward@howardchernlaw.ca

604 424-9686

Sebastian Chern:              schern@howardchernlaw.ca

604 424-9688

Justin Tam:                          jtam@howardchernlaw.ca

604-424-9683