The Constructive Dismissal With a Forced Return-to-Office
Your client is a senior account manager employed for nine years at a Toronto marketing firm, earning $135,000 plus a discretionary bonus that has averaged $18,000 annually. During the pandemic she worked remotely full-time with the employer's express written approval. In 2024 the employer issued a policy requiring all employees to be in the office four days per week. Your client has a documented anxiety disorder and a note from her psychiatrist recommending continued remote work. The employer denied her accommodation request, saying the role 'requires in-person collaboration,' and gave her a performance improvement plan citing 'reduced visibility.' She has not resigned. The employment contract contains a clause permitting the employer to 'change duties and work location from time to time' and a termination clause limiting notice to the ESA minimum. She is 52 and has no other offers.
1. Has a constructive dismissal occurred, and how should the accommodation issue be analysed?
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Constructive dismissal requires a fundamental breach of the employment contract - either an express term or a breach of the implied term of good faith and fair dealing. A unilateral change to a fundamental term, such as work location, can constitute such a breach if it is substantial.
Here the employer relies on the flexibility clause. Such clauses are read narrowly and do not authorize changes that are fundamental or that defeat the parties' reasonable expectations. The employer's express written approval of full-time remote work over several years may have become an implied term or at least evidence of the parties' expectations. A four-day in-office mandate is a significant change, but whether it is fundamental is fact-specific.
The accommodation issue is analytically separate and stronger. The client has a documented disability within the Human Rights Code. The employer has a duty to accommodate to the point of undue hardship. The employer's refusal must be assessed on the evidence: has it considered remote work, a hybrid arrangement, or modified duties? A blanket 'in-person collaboration' rationale without an individualized assessment is vulnerable. The PIP citing 'reduced visibility' may itself be evidence of reprisal.
Advise: the constructive dismissal claim is arguable but not certain; the human rights claim is stronger. She should not resign without a documented demand for accommodation and a reasonable period for the employer to respond.
2. If she resigns and claims constructive dismissal, what is her notice entitlement and how does the termination clause affect it?
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At common law, notice is assessed on the Bardal factors: age (52), length of service (9 years), character of employment (senior account manager), and availability of comparable employment. A realistic range is 9 to 12 months' notice, plus the bonus that would have been earned during the notice period if it is an integral part of compensation - here the $18,000 average supports inclusion.
The termination clause purporting to limit notice to the ESA minimum is the battleground. Such clauses are enforceable only if they clearly comply with the ESA and do not contract out of it. A clause that limits notice to the ESA minimum may be valid if properly drafted, but many are struck down for ambiguity or for excluding entitlements (such as benefits continuation) required by the ESA. If the clause is void, common law notice applies in full.
Even if valid, the clause does not assist the employer if the dismissal is a constructive dismissal founded on a human rights breach; damages may include human rights compensation separate from notice.
Advise: quantify the claim - 9 to 12 months' salary ($101,250 to $135,000) plus bonus and benefits, less mitigation. Her lack of offers and age support the higher end. She must mitigate, and any new income reduces the award. Recommend a demand letter before resignation, preserving the human rights claim.