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 dismissal".
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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