In order to meet their organizational needs, employers may need
to relocate their employees' workplace. However, relocating
employees can be risky business for employers.
The place of work is an important part of an employee's
working conditions. When employers make substantial changes to
their employees' working conditions, said employees can
potentially claim that their original employment contract has been
terminated. This is referred to as a "constructive
When it comes to relocating an employee's workplace, a
substantial change is defined by the relocation involving a
relatively large distance, and impacting the employee's daily
life. Generally, the courts will evaluate this by calculating the
time it will take the employee to travel to and from work each day.
They will attempt to determine whether a reasonable person would
consider the relocation to be a substantial change. Even though
case law does not refer to a scale by which the distance from the
workplace can be measured and evaluated as a substantial change, it
seems that any workplace relocation within less than 35 kilometers
will not be considered problematic. However, it seems that the
level of risk for employers does rise when the relocation involves
50 kilometers or more. In such cases, a decision maker could
evaluate that the relocation constitutes a substantial change to
the employee's working conditions, and that there is reasonable
cause to claim constructive dismissal. Nevertheless, such
occurrences need to be analyzed on a case by case basis.
Employees that are subjected to constructive dismissal due to
the relocation of their workplace are entitled to reasonable
notice, or pay in lieu thereof. The employees could also file a
complaint under article 124 of the Act respecting labour
standards aiming to cancel the workplace relocation, provided
that the conditions of the complaint under article 124 are met.
Employers may, however, overcome the legal consequences
mentioned above by negotiating a mobility clause in the
employees' employment contract. In such cases, an employer
would be able to make changes to an employee's workplace
location, provided that these changes coincide with the terms
established within the employment contract. For an employer to take
advantage of this opportunity, mobility clauses must meet certain
requirements in order to be valid. Case law has established in
particular that the mobility clause needs to have been brought to
the attention of the employee, who will have had to voluntarily
consent to it, and be sufficiently precise by providing examples of
locations where the employee might be required to work.
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