Return to office mandate keys: clarity, consistency, consideration

A recent British Columbia Court of Appeal decision is prompting renewed conversation across Canada about remote work, employer authority and what happens when expectations about where work is performed are not clearly set out.

While the case itself is rooted in B.C., the implications are relevant for employers in Manitoba and elsewhere who are continuing to refine their return to office strategies in a post-COVID-19 pandemic world.

At the heart of the discussion is a simple but important question: if an employee was hired during a period when remote work was widely accepted or even standard, can an employer later require that employee to return to the workplace full time?

The court’s message, in essence, reinforces something many employment lawyers have been emphasizing since pandemic restrictions eased: remote work is not automatically a permanent entitlement.

In most cases, unless it has been clearly written into an employment contract or formally established as a long-term condition of employment, employers retain the ability to set where work is performed.

This does not mean employers can change working conditions without care or consequence. It does mean context matters — and so does communication.

For many organizations, the pandemic years created an unusual employment environment. Remote work expanded rapidly out of necessity, not necessarily out of long-term planning. Policies were created quickly, sometimes informally, and expectations evolved as businesses tried to maintain operations during uncertainty. In that period, employees and employers alike may have developed assumptions about flexibility that were never fully documented.

Now that many workplaces have settled into more stable operating models, those assumptions are being tested.

The court decision highlights a key legal principle in Canadian employment law. Unless an essential term of employment is clearly established, either in writing or through consistent and explicit practice over time, employers generally have the right to determine how and where work is performed.

However, the nuance is if an employer changes a fundamental condition of employment, it may raise the risk of a constructive dismissal claim. That is where an employee argues a significant unilateral change has effectively ended the employment relationship.

This is where caution is especially important for Manitoba employers considering or implementing return to office mandates.

In Manitoba, as in other provinces, employment relationships are governed by both written contracts and implied terms shaped by practice, policy and behaviour over time. If an employee was hired with a clear expectation of remote work or if remote work has been consistently allowed over years without qualification, it may be more difficult for an employer to suddenly require full-time office attendance without engaging in meaningful discussion or transition planning.

That said, courts have also been clear that workplace flexibility introduced during extraordinary circumstances does not automatically become a permanent contractual right. Temporary arrangements, especially those made during the COVID-19 pandemic, are often interpreted as just that — temporary — unless there is evidence to the contrary.

For employers, the practical takeaway is not simply about legal authority. It is about managing change in a way that reduces risk, maintains trust and recognizes the workforce has shifted in its expectations.

Many employees have come to value remote or hybrid work for reasons that go beyond convenience. Reduced commuting time, improved work-life balance and, in some cases, increased productivity are frequently cited benefits. At the same time, employers are balancing legitimate business considerations such as collaboration, culture building, supervision, service delivery and the needs of roles that cannot be performed remotely at all.

It is important to acknowledge not all work can be done from home and not all employees have equal access to remote work arrangements.

Many roles in health care, trades, manufacturing, hospitality, public service and front-line support require physical presence. Even within office environments, some positions are more suited to remote work than others based on technology, security or client interaction needs. This means remote work continues to function more as a workplace benefit or operational tool rather than a universal employment right.

For Manitoba employers, the risk emerges when changes are introduced without clarity, consistency or consideration of individual circumstances. A blanket directive requiring all employees to return to office five days a week, for example, may be legally defensible in many cases, but still create morale challenges or legal exposure depending on how remote work was previously established.

Where employers often encounter difficulty is not in the decision itself, but in the transition process.

Employees who have been working remotely for several years may experience a return to office mandate as a significant shift in their working conditions. Even if legally permissible, it may still be perceived as a fundamental change. This is where constructive dismissal arguments can arise, particularly if the change is sudden or not accompanied by consultation, rationale or transition support.

The recent B.C. court decision reinforces the importance of documentation and communication. Employers are in a stronger position when employment contracts clearly outline expectations regarding work location, flexibility and the employer’s right to modify arrangements. Where contracts are silent or ambiguous, historical practice and written policies become critical evidence.

It also underscores the value of consistency. If some employees are allowed to remain remote while others in similar roles are required to return, employers should be prepared to explain the rationale. Inconsistent application of policy can create perceptions of unfairness and increase the risk of internal conflict or legal challenge.

A more measured approach often works best. This includes assessing which roles genuinely require in- person presence, which can remain remote and which may benefit from hybrid arrangements. It also involves recognizing that flexibility can be a strategic tool for recruitment and retention, even if it is not universally applied.

At the same time, employers are not required to maintain pandemic-era arrangements indefinitely. Business needs evolve and organizations have the right to adjust operational models. The key is ensuring changes are implemented thoughtfully, with attention to both legal obligations and human impact.

The safest path forward is to treat return to office decisions as a change management exercise rather than a simple operational directive. That means communicating early, explaining the rationale clearly, considering phased approaches where appropriate and being mindful of individual circumstances where flexibility may still be reasonable or necessary.

Ultimately, remote work is likely to remain part of the Canadian employment landscape but not as a universal expectation. It continues to sit in a middle space, shaped by employer discretion, role requirements and evolving workplace norms.

For some employees, it will remain an important benefit. For others, it will never be an option at all.

The key takeaway from the recent legal and workplace developments is not that one model is right or wrong, but that clarity matters. When expectations are clearly set, consistently applied and supported by thoughtful communication, employers are in a much stronger position to navigate change while maintaining both legal compliance and workplace trust.

Tory McNally, CPHR, BSc., vice-president, professional services at TIPI Legacy HR+ (formerly Legacy Bowes), is a human resource consultant, relationship builder and problem solver. She can be reached at tmcnally@tipipartners.com