Return-to-work mandates in Canada have been met with significant resistance, with some workers resorting to creative tactics to avoid a full return to the office. One practice that has gained attention is the "swipe-and-go," where employees swipe their workplace passcard at the office only to immediately leave and head home for the rest of the day.
In a recent Ontario lawsuit, dozens of former employees are seeking millions of dollars in damages from a major Canadian telecom after being terminated for alleged "swipe-and-go" behavior. The employer alleges that employees breached its code of conduct by entering the office solely to satisfy attendance requirements, while the employees claim the terminations were part of a cost-cutting strategy disguised as misconduct.
The legal issue at hand is not whether employers can require employees to return to the office, but rather how those policies are enforced. The central allegation in the lawsuit is that the employer tolerated the alleged "swipe-and-go" practice for months or even years before suddenly treating it as serious misconduct worthy of dismissal for cause.
This presents a difficult legal hurdle, as under Ontario employment law, conduct that has been knowingly tolerated by an employer is much harder to later characterize as just cause for dismissal without clear notice that the rules have changed. Employers cannot quietly accept a practice and then rely on it as grounds for termination once it becomes operationally convenient.
Termination for cause remains the most serious sanction available in employment law, eliminating an employee's entitlement to notice and severance entirely. Courts expect employers to establish not only serious misconduct, but also a fair and proportionate investigation and disciplinary process, especially when allegations of misconduct arise alongside workforce reductions or cost-cutting initiatives.
While the specifics of this case may be unique, the lessons apply to employers everywhere. Introducing return-to-office policies thoughtfully, with advance written notice and a gradual rollout, can help mitigate the risk of constructive dismissal claims. Consistency in enforcement and transparency in communication are also crucial in maintaining a positive work environment and avoiding costly litigation.
Ultimately, the key to successful return-to-office policies lies in their thoughtful implementation and fair enforcement. By prioritizing transparency, consistency, and fairness, employers can minimize the risk of costly litigation and maintain a positive work environment.
