Canadian HR Reporter

CANADIAN HR REPORTER June 15, 2015 INSIGHT 19 Can you force an employee to relocate? Question: Can an employer force an em- ployee to transfer her work location? Can the employee refuse the move — and what are the legal implications for doing so, both for the employee and the employer? Answer: Like so many areas of employment law, the answer to this question is "it depends." In some cases, the courts have found forced employee relocations amount to constructive dismissal, but that depends on the specifi c scenario in question. Every case is diff erent but there are a few things to remember: Not every change will be con- sidered fundamental: A move to a new offi ce two blocks away, for example, is unlikely to be consid- ered fundamental. e change has to be unilater- al to be constructive dismissal: If an employee freely agrees to the change, there is no constructive dismissal, especially if additional "consideration" (a legal term meaning something of value) is provided in exchange. Employees have a duty to mit- igate: In the 2014 case of Farwell v. Citair Inc., the Ontario Court of Appeal held that, in certain cir- cumstances, a constructively dis- missed employee may even have an obligation to mitigate his losses by accepting a lesser position and working out the balance of the no- tice period. Presumably, this principle could also apply in the context of a forced relocation, particularly if the distances involved aren't too large. Constructive dismissal One of the leading cases in this area is the 2004 Marshall v. New- man, Oliver & McCarten Insur- ance Brokers Ltd., where an in- surance brokerage was found to have constructively dismissed a customer service representative when it transferred her to another offi ce, adding about 30 minutes to her commute. Of particular signifi cance was the fact that when her employer had purchased the business in question, the employee was not informed she might be trans- ferred to another offi ce. Had she known about the condition, she could have refused the off er from the new company and accepted severance instead. In the absence of a written em- ployment contract with a mobility clause authorizing an employer to relocate the employee, the indi- vidual facts would be material. e distance involved and the commuting time obviously play a role in determining whether or not constructive dismissal would apply. So unilaterally moving someone from Toronto to Van- couver would likely amount to constructive dismissal. Obviously, the inclusion of a valid and enforceable mobility clause within a written employ- ment contract allowing the em- ployer to transfer the employee to another location would make it diffi cult to successfully argue constructive dismissal. This is especially true if the clause was introduced prior to the individual commencing employ- ment or if introduced during the course of employment and freely agreed to by the employee — es- pecially if it was supported by ad- ditional remuneration from the employer. e level of the position and the customs and business practices in the industry in question also have an impact. For example, someone in an executive position would likely be expected to commute a longer distance as a result of job relocation versus an entry level clerical employee. Likewise, many industries re- quire employees to transfer to other locations on a fairly regular basis, such as banks. Implications for employers From a practical perspective, an employee is much less likely to ob- ject to a forced relocation if she is provided with suffi cient advance notice and relocation assistance from the employer. In general, being reasonable and fl exible with employees and accommodating their needs goes a long way towards making them more satisfied. Someone being transferred to another location further away could be offered flexible hours or the ability to work from home once or twice per week, for example. One way of avoiding construc- tive dismissal entirely is to provide long advance notice of impending contractual changes of up to two years — or even longer in some situations. is would need to correspond with the reasonable notice pe- riod at common law to which that particular employee would be en- titled if he was being terminated without cause. However, as a result of the On- tario Court of Appeal decision in the 2008 Wronko v. Western In- ventory Services Ltd., an employ- ee who objects to a fundamental contractual change should be pro- vided with a written notice of ter- mination and a subsequent off er of re-employment eff ective on the day the reasonable notice period expires. is could presumably apply to an employee who objects to relocation. Job abandonment In a situation where an employee flatly refuses to accept reloca- tion and there is no possibility of constructive dismissal, he may be seen to have abandoned his position. However, the employer should be reasonable and fl exible and make reasonable attempts to contact the individual and try to get him to come into work before terminating employment. Employers also have a duty to accommodate an employee's pro- tected characteristics under the governing human rights legisla- tion. is is particularly true in light of the fact courts and tribu- nals are increasingly recognizing the need to accommodate em- ployees' family status with respect to their childcare and eldercare obligations, which may have an impact on their commute. It may also be necessary to ac- commodate an employee's dis- ability, which may make it more challenging for the individual to attend work in another location, for example, if the new location is less accessible by public transit. Because every situation and every individual are different, employers are advised to seek qualifi ed legal advice when con- sidering an offi ce move or if an employee is likely to object to a forced relocation. Brian Kreissl is the product develop- ment manager for Carswell's human resources, OH&S, payroll and records retention products and solutions in Toronto. For more information, visit www.carswell.com. Brian Kreissl ToUghest HR QUestion Why are employment fi les so important? Information management key component of effective HR management Employee fi les are fundamental to eff ective HR man- agement. Proper records document the employment relationship, keep track of business decisions, comply with legislation, create an audit trail and protect the company from litigation. With an abundance of employee information and rapidly evolving technology, it is essential HR has knowledge of records retention legislation and best practices. Yet management of employee fi les is not seen as a strategic pri- ority by most HR practitioners and often fails to include strate- gies for managing information in diverse formats (such as emails and spreadsheets) and locations (such as cloud-based systems and locally stored digital fi les). Legal cases can be lost simply because of documentation that is — or isn't — in an employee fi le. We defi ne an employment fi le as the structured collection of retriev- able records that is saved for the purpose of managing the entire employment relationship. e impact of privacy legislation e concept of personal employ- ee information is defi ned under privacy legislation. Any record of an identifiable employee an organization collects could be interpreted as personal employee information and be subject to pri- vacy legislation. Where such legislation applies, employers have obligations to limit the collection, use and dis- closure of personal information, and they must safeguard such in- formation. Employees frequently have the right to access their information. However, while employers need to be aware of the requirements under privacy legislation, they don't necessarily need to consider every email written by an employ- ee to be part of the fi le. Human rights legislation re- quires employers to ensure work- places are free from discrimina- tion and to accommodate work- ers based on protected character- istics. Human rights legislation impacts the entire employment lifecycle, from hiring through to termination. Information man- agement practices must consider human rights legislation, and re- cords must be kept with consid- eration of the limitation periods within such legislation. What records form part of fi le? ere are numerous types of re- cords that are considered part of the employment fi le. Some are legislated while others are kept for business reasons. Legislative requirements for employee record-keeping relate mainly to taxation and employ- ment standards legislation and include basic employment his- tory, wage details, tax withhold- ings, vacation and holiday pay and other payroll-related records. Em- ployers are required to retain such records for a legally prescribed timeframe, typically six years. At- tendance, vacation and safety re- cords also fall under this category. Contractual documentation entered into between an employer and employee forms the starting point of the employment fi le. is applies not only in terms of formal written employment agreements, but also employment off er letters and any other documentation re- ferred to and incorporated into the employment contract, such as an employee handbook. Termination agreements or re- leases are also important, as is any document signed by the employee indicating an acceptance of condi- tions, such as the company's code of conduct, its bonus plan, com- missions or any pay-related agree- ments. Non-competition, non- solicitation and non-disclosure agreements must also be retained. Particularly important are those records that protect the employer from claims. ese include per- formance and disciplinary docu- mentation, company responses to accommodation requests, inves- tigation fi les and company policy acknowledgements. Because organizations are fl uid and managers change and leave, recording communications and decisions is important. For instance, documenting previ- ous reporting structures may be relevant. What not to keep It is tempting for employers to re- tain virtually all documentation in the employment fi le. e follow- ing information should probably not be kept: Outdated information: Some information does not provide any purpose if it is no longer current. Information that has out- lived its purpose: For instance, if an employee receives a disciplin- ary letter and the letter is to be removed from the fi le after two years as part of a "sunset clause," it should probably be removed (although the employer may wish to keep it to rebut a claim that the employee had a spotless record). Information that is not re- quired: For example, printouts of documents stored in an electronic format. Multiple copies and versions: Generally, it makes sense to re- tain only the fi nal version of a document. is article is an excerpt from the new book published by Carswell and Canadian HR Reporter entitled HR Manager's Guide to Employment Files and Information Management: Legis- lation and Best Practices, by Howard Levitt and Tanya Neitzert. Levitt is a senior partner at Levitt & Grosman in Toronto; Neitzert has held leadership roles in HR at several organizations. An employee is less likely to object to a relocation if given suf cient notice. Information management key component of effective HR management Employee fi les are fundamental to eff ective HR man- agement. Proper records document the employment relationship, keep track of business decisions, comply with legislation, create an audit trail and protect the Howard Levitt and Tanya Neitzert GUest CoMMentary

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