Termination of employee due to WFH, found to be wrongful dismissal

In Briggs v. ABC Insurance Solutions Inc., 2024 BCSC 1918 the British Columbia Supreme Court held that an employee who was terminated, partially because she worked from home, was wrongfully dismissed, and further was entitled to reasonable notice at common law due to an ambiguous termination clause.

Background

The plaintiff, Briggs, was employed as a customer service manager by the defendant, ABC Insurance Solutions Inc. (“ABC”) from November 2021 until July 2023, less than two years. Briggs’ salary after a raise was $67,410 per year.

Briggs’ employment contract contained a termination clause as follows:

The Employee and the Employer agree that reasonable and sufficient notice of termination by the Employer is the greater of two (2) weeks or any minimum notice required by law.

A dispute arose from Briggs working from home in Langley instead of commuting to ABC’s office in Mission. Briggs’ position was that her role was a “hybrid” role and that working from home was a normal practice at ABC. This work from home practice and policy was acknowledged by ABC, but qualified that it was due to the pandemic.

Briggs’ review occurred on March 17, 2023. In the review, the parties discussed a raise and travel allowances to cover her commuting expenses. On that same day, ABC notified all employees that they were expected to return to the office in person, full-time, by September 2023. After her review, Briggs attended ABC’s office regularly except for her designated work from home day each Wednesday. However, the issue of her commuting expenses remained unresolved. Briggs later sent several emails to ABC regarding her commuting expenses, to which ABC did not respond. The issues of the commuting expenses remained unresolved. In July 2023, Briggs emailed ABC saying it was no longer financially feasible to work from ABC’s office and that she would work from home. She added she “hope(d) that we will open a line of communication soon.” Shortly after, ABC emailed Briggs informing her she was no longer employed. Briggs filed a Notice of Civil Claim claiming wrongful dismissal.

Decision

The two main issues were:

1. Did ABC terminate Briggs’ employment or conversely did Briggs repudiate the employment contract?; and

2. Was the termination clause enforceable?

The court found that ABC terminated Briggs’ employment. Briggs did not repudiate the employment contract. Briggs did not threaten that she would not continue to work unless her commuting expenses were covered. She was merely seeking clarification, and it was found that at the time, ABC did not prohibit working from home and it was not inconsistent with the terms of Briggs’ employment.

The court found that the wording “any minimum notice required by law” as outlined in the termination clause was ambiguous and unenforceable. “Any notice” was not the same as the probable intention of “the minimum notice” required by the ESA, and “by law” arguably could include the common law. Briggs was awarded 4.5 months of termination notice.

Key Takeaways

Employers should be careful if they intend to transition their employees from working from home to primarily working from the office, especially if certain policies or established practices support it. As it is the start of the new year, it would be an opportune time to review your staffs’ employment contracts, especially the termination clauses.