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THE QUESTION
My company is transitioning from a hybrid schedule of two days in the office to four days in-office. I already planned and booked a vacation with the intent of working remotely for some of my work-from-home days (which is something I’ve done in previous years and my managers knew about).
I asked if they could make an exception for me, but they denied the request. Now I have to change my flights to come back earlier, which will cost hundreds of dollars. Should my company be responsible for the rebooking fees since I planned the vacation based on the policies at the time?
THE FIRST ANSWER
Brynna Hambly, associate lawyer, Ascent Employment Law, Vernon, B.C.
The short answer is no, your company is likely not responsible for paying your flight change or vacation rebooking fees. Under Canadian employment law, employers are generally not required to reimburse employees for personal expenses caused by a new return-to-office policy.
That said, long-standing remote or hybrid work arrangements can sometimes become implied terms of employment, even if they were never formally written into a contract. Canadian courts increasingly recognize that if an employee has worked under a certain arrangement for a significant period of time, the employer may need to provide reasonable notice before making major changes.
A change from a hybrid arrangement with two days in office and three days working from home to a hybrid arrangement with four days in office and one day at home could potentially amount to constructive dismissal if the change is significant, made without your agreement and without adequate notice. Courts often look at factors such as the original expectations of the parties, past employer-condoned workplace practices, whether the employee reasonably relied on the arrangement and whether sufficient notice was given.
Here, relevant facts include that you booked your trip based on an established hybrid practice, management knew you planned to work remotely during part of the vacation and you relied on the existing arrangement when making travel plans. However, because you are still permitted to work from home one day per week, the change may not be significant enough to support a constructive dismissal claim.
Even if there were a constructive dismissal, pursuing that type of claim would likely mean leaving your employment and finding a new job, which may not be the outcome you want. Also, a constructive dismissal claim would not necessarily solve the immediate issue of recovering your vacation rebooking costs.
Practically speaking, your best option may be to explain the situation to your employer, respectfully assert your right to notice of any significant changes to your employment terms and ask whether they would reconsider allowing remote work during your vacation given the risk of constructive dismissal or cover some of the fees on a goodwill basis. If possible, we always recommend reaching out to an employment lawyer to assist you in dealing with complicated employment issues.
THE SECOND ANSWER
Muneeza Sheikh, founding partner, Muneeza Sheikh Employment and Human Rights, Toronto
Your company reserves the right to make changes to its policies that it sees fit – provided, of course, that those changes are reasonable. Many workplaces across the country are abandoning hybrid workplace models in exchange for full-time, in-office attendance. It’s not unreasonable for your company to move to four days in the office, but it is prudent to ensure they provide some notice, particularly if employees have been enjoying a hybrid model for an extended period of time.
If employees were told at the time of implementation that the “two-days-in-the-office” model was only temporary, the company may argue that they are not obligated to provide any notice of the new office schedule. If they changed the policy abruptly with no notice, you may be able to argue that you relied on the hybrid policy to be able to work from your vacation destination. If your manager knew about your intention to use your remote days while travelling on holiday, you may have a stronger case.
It is not unreasonable, however, for employers to insist that work-from-home days are actually at home as opposed to working while on vacation. There has been much dialogue around employee productivity while working from “home” when home is a destination other than home.
You have an obligation to adjust to the new policy. If your manager approved your request to ‘work from home’ while on holiday, you may be able to get reimbursement or stick to your original travel plans. Absent that, I think you are out of luck and will have to come into the office just like everyone else.
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