Alberta Court Finds Return-to-Office Mandate was Constructive Dismissal for Employee who was Hired Prior to the Pandemic as a Remote Worker
In Nickles v. 628810 Alberta Ltd., 2025 ABKB 212, a judge of the Alberta Court of King’s Bench has ruled that an employer’s directive requiring an employee to return to the office constituted a constructive dismissal.
Constructive dismissal arises when an employer unilaterally makes a significant change to a fundamental term of employment without the employee’s consent. In such cases, the employee may treat the contract as terminated and pursue a claim for constructive dismissal.
The plaintiff, Ms. Nickles, had worked as an office manager for 37 years. Throughout her employment, she had worked remotely and attended the office solely at her discretion. Following the pandemic, her employer directed her to begin working from the office. When she declined, the employer proposed a hybrid schedule requiring in-office attendance 2.5 days per week, while reserving the right to demand full-time office work in the future. Ms. Nickles did not accept this offer and commenced a claim for constructive dismissal.
The Court found that remote work was a long-standing and integral part of Ms. Nickles’ employment arrangement that preceded the pandemic. As such, the employer’s return-to-office directive amounted to a unilateral change of a fundamental term of employment. This change, made without reasonable notice, constituted a constructive dismissal. The Court distinguished this case from post-pandemic return-to-office scenarios, emphasizing the historical context of the work-from-home arrangement.
The employer argued that Ms. Nickles failed to mitigate her damages by rejecting the hybrid work proposal. However, the Court rejected this argument, concluding that accepting the modified offer would effectively allow the employer to impose the same fundamental change that led to the constructive dismissal in the first place. Nevertheless, the Court confirmed that traditional principles of mitigation continue to apply.
Key Takeaways for Employers:
- Employers must exercise caution when making unilateral changes to core employment terms, particularly where long-standing practices exist;
- An employee may not be required to mitigate by accepting an alternative arrangement that reproduces or could reproduce the same fundamental change at issue; and
- Employer’s implementing return-to-office mandates must take into account individual employment histories to ensure the manner of recall is legally permissible.