Employment lawyer on employee rights and Tesla ultimatum

Interview Summary

Tesla employees are facing an ultimatum posed by Elon Musk. Employees either return to the office or could lose their employment and it will be considered a resignation. What can employees who are told to return to the workplace expect from their employers in other businesses?

Mackenzie Irwin, a Toronto employment lawyer and Associate at Samfiru Tumarkin LLP spoke with John Oakley on 640 Toronto to discuss the dilemma for employees.

Interview Notes

• Employer expectations returning to the office: Generally speaking if there is no contract in place or prior to the pandemic an employee was not working from home occasionally, an employer is within their rights to require employees to return to the office.
• Employee negotiations for hybrid work model: Employees are within their rights to communicate their concerns and needs with their employers and try and negotiate a hybrid work model or arrangement.
• Terms of employment changing in the contract: By negotiating a hybrid work arrangement there would be a change to terms of employment that an employer would have to respect.
• Returning to the office with new terms of employment: Some employers are recalling employees to the office and making other changes to the terms of employment without an employee’s consent. Employers are not permitted to make fundamental changes to the terms of an employee’s job without permission, such as a reduction in pay or a demotion. This can lead to constructive dismissal.
• Repercussions for Tesla employees: Elon Musk is trying to establish that employees who have refused to come into the office are seen as abandoning their employment. Employers will have to ensure they have all proper documentation and have pursued accommodation requests before terminating an employee.
• Gauging employee productivity while working from home: Performance issues might not be a factor that dictates whether or not an employer can request an employee return to the office. Employers will have had to implement performance reviews over the entire period that an employee was working from home.