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Refusing to Return to the Office and Insubordination: What Should You Do?

Refusing to Return to the Office and Insubordination: What Should You Do? | Leckers Law

Employees working remotely are refusing to return to the office as pandemic constraints are relaxed. Employees have seen that working from home works for them, with increased/good efficiency, similar levels of communication, increased happiness and theoretically more loyalty to the employer.

Some offices have allowed a perpetual work-from-home set-up or some hybrid arrangement. Others have permitted employees to relocate far from the office, and some have no plans to return to the office at all. Whatever the scenario in your workplace, a part of the workforce does not want to go back to commuting to a traditional office.

Employers are required to take all reasonable actions to provide a safe and healthy work environment for their staff. Many employers permitted employees to work from home throughout the pandemic to reduce the chance of contracting and spreading COVID-19 at work. Now, companies are demanding employees return to the office. However, many people prefer working remotely and do not wish to go back.

Can an Employee Decline an Employer’s Orders to Return to In-Office Work?

If an employee fails or refuses to return to the workplace when ordered, their employer may take disciplinary action and treat it as insubordination and dismissal for cause. In most cases, employers have the power to decide where employees perform their work – with some exceptions. It depends on their employment agreement and if the workplace is safe to return to. Broadly speaking, people that used to work at an office may be forced to return if their employer tells them to. Exceptions are made for employees needing medical or childcare accommodations. Therefore, if you refuse to return to your workplace, you may be dismissed, or the company will argue you abandoned your job.

You May Have a Clear or Subtle Employment Right to Work from Home

Depending on what your employer has written or said to you about your work-from-home arrangement, you may have grounds to argue that work-from-home has become a fundamental term of your employment. If your employer wants to change this fundamental term and push you back to the office, you may be entitled to reasonable notice of that change.

An employment lawyer can help you sue for wrongful dismissal if notice is not given. Advance notice of the requirement to return to the office is suggested to allow employees to plan accordingly. A longer notice period is necessary to prevent or reduce the chance of a possible constructive dismissal action. In this case, an employee may be able to successfully assert that remote work is a fundamental term of the employment relationship – instead of only being temporary until required to go back to the office.

Lecker & Associates is a Toronto employment law firm that has fought for employees for over 35 years. Our experienced employment lawyers act as employee-side legal counsel. We have represented clients in thousands of cases involving wrongful dismissal, constructive dismissal, employment law in Ontario, employment contracts, sexual harassment in the workplace, and short- and long-term disability claims.

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