A recent decision of the British Columbia Court of Appeal, Cressey Construction Corporation v. Parolin, has attracted considerable attention because it involved a long-standing remote work arrangement and an employer’s attempt to require an employee to return to the office. Many commentators have focused on the remote work aspect of the decision. In my view, however, the more interesting lesson is much broader. The case raises a question that is becoming increasingly important in modern workplaces: When does a workplace practice stop being a temporary accommodation and become part of the employment bargain itself?
A Changing Workplace
Over the course of my career, I have watched the workplace evolve dramatically. Many members of my generation entered the workforce with an expectation that advancement required sacrifice. Long hours, personal inconvenience, relocation, travel and limited flexibility were often viewed as the price of building a career. Young professionals frequently learned their craft through a form of modern apprenticeship, observing experienced colleagues, accepting difficult assignments and prioritizing work obligations over personal convenience.
Today’s workforce often views matters differently. Many employees place a greater emphasis on flexibility, family responsibilities, work-life balance, mental health and personal fulfillment. Technology has also changed what is possible. Arrangements that would have been impractical a generation ago can now be implemented with relative ease.
Neither perspective is necessarily right or wrong. They simply reflect different priorities and different expectations. What is undeniable, however, is that those changing expectations are creating new challenges for both employers and employees.
Expectations Have Changed
Workplace disputes often arise not because one side is acting unreasonably, but because employers and employees are approaching the relationship with different expectations.
Many employers began their careers in an era where accommodations and workplace flexibility were frequently viewed as privileges rather than expectations. They may understandably become frustrated when arrangements originally granted as temporary measures begin to be viewed as permanent entitlements.
Employees often see matters differently. Many have structured their personal lives, childcare responsibilities, living arrangements and career choices around workplace flexibility that has existed for years. What an employer views as an accommodation, an employee may view as an established condition of employment.
Neither perspective is inherently unreasonable. The challenge arises when those differing expectations collide.
Conduct Can Matter as Much as Written Words
One of the most important lessons arising from Cressey is that employment relationships are not defined solely by written contracts. Courts will also examine the conduct of the parties. A temporary arrangement may remain temporary. However, where an arrangement is expressly approved, repeatedly renewed, consistently followed and relied upon by the employee over a lengthy period of time, a court may conclude that it has become part of the employment bargain itself. In other words, actions can sometimes speak as loudly as written words.
The issue is not limited to remote work. The same principle may arise in relation to:
- Flexible work schedules;
- Hybrid work arrangements;
- Established work locations;
- Reporting relationships;
- Compensation practices;
- Workplace accommodations; and
- Other practices that have become normal over time.
The longer an arrangement exists and the more heavily it is relied upon, the more difficult it may become to characterize it as merely temporary or discretionary.
Business Reasons Do Not End the Discussion
One aspect of the decision that I found particularly interesting is that the Court was not really focused on whether the employer had legitimate business reasons for wanting the employee back in the office. Businesses change. Economic conditions fluctuate. Organizations restructure. Management changes. Technology evolves.
Employers must retain the ability to adapt to changing circumstances. Employees, however, need a degree of certainty so they can organize both their professional and personal lives. The law attempts to balance those competing interests. The existence of a legitimate business reason may explain why an employer wishes to make a change. It does not necessarily answer whether the change can be imposed without legal consequence.
A Lesson for Employers and Employees Alike
In my view, Cressey should not be interpreted as a warning to employers about remote work. Nor should employees assume that every workplace accommodation automatically becomes a contractual entitlement. The real lesson is that long-standing workplace arrangements often create expectations on both sides.
Employers may view a practice as temporary and discretionary. Employees may view the very same practice as part of the employment relationship itself. The longer the arrangement continues, the more likely those expectations become entrenched. Understanding those expectations before conflict arises is almost always preferable to litigating them afterward.
What About Unionized Workplaces?
While Cressey arose in a non-unionized workplace and was decided under common law principles governing constructive dismissal, the underlying issue will be familiar to anyone involved in labour relations. In unionized workplaces, the legal analysis may differ. Questions of management rights, past practice, estoppel and collective agreement interpretation come into play. Nevertheless, the underlying human problem is remarkably similar. Disputes frequently arise when one party views a workplace arrangement as temporary while the other views it as permanent. Whether analyzed through the lens of collective agreement, estoppel, past practice or management rights, the issue often comes down to expectations, reliance and the consequences of change.
Looking Ahead
Cases such as Cressey are not really about remote work. They are about the evolving nature of the employment relationship itself.
As employee expectations continue to change and employers face increasing pressure to remain competitive, disputes over workplace flexibility and established practices are likely to become more common. The challenge for both employers and employees will be finding a balance between adaptability and certainty, between business needs and personal expectations.
One thing is clear. A workplace practice that appears informal today may look very different after years of approval, reliance and repetition. What one party views as a temporary accommodation may, over time, be viewed by the other as part of the employment bargain itself.