u/StableIllustrious166

​

TL;DR- Parolin v. Cressey is a useful private sector precedent that reinforces the legal principle underpinning union grievances against RTO. It doesn't give fed public servants a direct path to a lawsuit but it strengthens the broader legal narrative. The incremental rollout may have eroded the clarity of our collective objection. If you haven't filed or supported a grievance the window matters, act quickly and document your dissatisfaction in writing, especially if you're unrepresented.

I've been doing some reading after the latest RTO escalation and came across this case. Wondering if anyone has seen this come up in union discussions, grievances, or legal advice?

Short version: a private sector employee in BC had worked from home for 3 years and on a flexible schedule for 10 years. Employer suddenly told her to come back to a standard 9 to 5 in-office schedule and the court found that amounted to constructive dismissal, meaning the employer had fundamentally changed a core term of her employment. Company had to pay out 19 months notice.

The key principle being that long-standing remote and flexible work arrangements, even without a written contract, can become implied terms of employment through consistent practice and employer acquiescence. You cant just snap your fingers and reverse years of accepted working arrangements.

I ***know*** this won't directly apply to us because we operate under collective agreements, the PSEA, and the FPSLRA vs common law employment contracts and we don't typically sue our employer in civil court, our route is grievances and labour arbitration.

BUT! The reasoning in Parolin, that a long-standing practice acquires the force of a contractual term, is precisely the argument PSAC and others are making in their policy grievances. The gov't negotiated a Letter of Agreement on Telework after the 2023 strike. Unions argue the current RTO directives violate the spirit and terms of what was agreed. Parolin adds weight to the idea that you can't walk back years of sanctioned remote work w/out proper process.

***The part that should concern all of us:*** look at how this RTO escalation has actually unfolded. First it was 2 days in office, then 3, now 4 with execs already at 5. Each increment came gradually with enough time between steps that mass refusal never properly formed. In a private sector constructive dismissal case one of the key questions is whether the employee ***clearly and promptly objected to the change***. The incremental approach, whether by design or just how policy rollouts work, had the effect of preventing a clean moment of refusal. Employees appeared to have accepted each new baseline before the next one landed.

By the time we got to 4 days the employer can point back and say employees accepted 2, then 3, then 4 with no real objection at each step. The effect is the same regardless of intent.

I also want to flag that complying might weaken the case against RTO. For most fed public servants, work now grieve later is actually the correct legal posture. The public sector labour relations system is built around that principle and complying does not automatically waive your grievance rights as long as you file a timely grievance. We see this response here *all.the.time.*

For colleagues in non-unionized or private sector adjacent roles, complying without any written protest could seriously weaken a constructive dismissal argument though.

For all of us, years of silent compliance with each incremental RTO increase with no documented objection does create a factual record the employer will use down the road. So if you havent already, make your dissatisfaction known in writing, to your manager, through your union rep, or by filing or supporting a grievance. Unions need a paper trail and so do you.

PSAC has been pushing members to file individual grievances arguing the mandate violates the negotiated telework agreement. CAPE has gone further saying they need conciliation and strike rights in the next bargaining round rather than going straight to arbitration, because arbitrators cant award new rights like telework protections, they can only reference what other unions already have.

Has anyone spoken to their union rep about this case specifically? Curious if it's actually being referenced in grievance submissions or arbitration prep.

Some of the pushback I've seen cited in this forum:

"Management rights, the employer can tell us where to work." True in principle but mgmt rights arent absolute. They're constrained by collective agreements, negotiated letters of agreement, and the duty to bargain in good faith. The 2023 telework LOA is key.

"Parolin is BC private sector law, doesnt apply to us." Fair on the direct application but legal reasoning crosses jurisdictions and sectors in labour arbitration all the time, especially on questions of what constitutes a fundamental change to working conditions.

"We're still employed and getting paid so how is this constructive dismissal." For most fed public servants that's true, the vehicle is grievance not a lawsuit. But for colleagues on term positions, individual telework agreements, or roles specifically recruited as remote, the constructive dismissal framing may be more directly relevant...

"This is just post-COVID everywhere is doing RTO." Maybe, but the fact that a telework agreement was specifically negotiated and signed distinguishes fed public servants from employees who just happened to work from home during the pandemic. For many of us, working remotely for many years, there is no office to "return" to. Some of us have been working from home for the better part of a decade.