By Maciej Lipinski is a lawyer and Senior Associate, Employment & Labour Law, KPMP Law LLP.
The world of work has changed since 2020, and employers expecting to turn back the clock are likely to face challenges.
Return-to-office initiatives at large employers face pushback from employees who are not convinced that they do better work at the office, or that they need to be at the office at all.
However, KPMG’s CEO Outlook survey and its 2023 companion KPMG Private Enterprise™ Business survey revealed that business leaders in Canada and globally remain keen to get more employees back in the office. Nonetheless, the number of Canadian leaders who predict a full return to in-office work within the next three years has declined to 55 per cent, down from 75 per cent a year ago.
Against this backdrop, recent Canadian labour law cases illustrate that an effective return-to-office must be approached as a shift forward – one that takes into account the learnings of the pandemic and recognizes both the benefits and limitations of remote versus in-office work.
Consider the following cases:
- A recent labour arbitration overturned an employer’s blanket denial of various employees’ applications to work remotely. That decision turned on the arbitrator’s finding that – despite the benefits of in-person work to workplace culture – the pandemic had changed what can be assumed by employers about when it was and when it wasn’t necessary for employees to be physically present at the office.
- Another case saw a labour union put the employer on notice that, going forward, the union would expect that remote work options made available to any one employee would also then be available to any other employee on the same terms. The union warned that if the employer failed to take this uniform approach, it would respond by filing grievances against the employer.
- In recent negotiations with federal public sector employees, the federal government faced pushback to its position that in-office work would be the default going forward. The government eventually agreed to review remote work requests on a case-by-case basis in order to reach agreement with its unionized workers.
A key point arising from these recent cases is that employers and their human resources professionals carrying out a return-to-office are well-advised to avoid the assumption that a return-to-office is tantamount to a return to pre-pandemic ways of working. Instead, the advisable route is forward-facing and should take into account the following:
- A return-to-office must be consistent with an employer’s obligations under any applicable contract, collective agreement or policy. Importantly, these obligations may be written, unwritten, or a combination of both, and a legal opinion may be necessary to clarify how any return-to-office initiative should be implemented on a sound footing to mitigate risk.
- Communications and policies establishing a return-to-office should account for the employer’s remote workplace experience during the pandemic. Factors to consider include: (i) the quality of in-person versus remote services received by customers and/or clients; (ii) ensuring long-term knowledge transfer between senior and junior colleagues; and (iii) the availability of mentoring and advancement opportunities to employees who work remotely.
- Unless a contract or valid policy states otherwise, all employees in a job class should be provided a fair opportunity to apply for and receive a remote or hybrid work arrangement if such an arrangement is made available to any single employee in that job class.
These lessons from Canadian labour law cases align with recent research. The research shows that human resources management built around transparent and responsive communications can both engender a commitment to change among employees and support retention by building a culture of solidarity among employees at all levels. In other words, when it comes to implementing a return-to-office, a sound legal approach can mitigate legal risk alongside a healthy and resilient workplace culture.
Sound legal advice is also essential to navigating risk when managing workplace changes. When carrying out a return-to-office, in particular, it’s necessary to recognize the pandemic’s lessons and build upon them to move forward as an organization. As recent labour law cases bear out, organizations that fail to move forward risk being held back and tied up in litigation when employees refuse to return to the past.
