News / Canada

Clarify your contract to avoid conflict or even dismissal

Sometimes employees too easily confuse who gets to call the legal shots.

Believing that their job is an entitlement, some workers try to take the law into their own hands. They are often mistaken.

This is the story of one employee who learned this lesson the hard way.

Working from his home in Alberta for a Vancouver based software firm, Dean Ernst quickly wore out his welcome.

Hired as a vice- president of operations, Ernst and his employer agreed that he could work from home on a temporary basis with the intention that he would move to Vancouver in the future.

Ernst interpreted their agreement to mean that, as a work-from-home employee, he could work from anywhere that he wanted.

Ernst owned a home  in Cabo San Lucas, Mexico, where he planned to later move for his retirement.  However, Ernst and wife decided to permanently move to Mexico earlier than they had first anticipated.

Ernst flew to his home in Mexico and satisfied himself that there were no obstacles to working for his employer there instead of from Alberta.  The problem is that he did not mention any of this to them.

Ernst later called his boss and explained that he was moving to Mexico and that, as a work-from-home employee, the manner in which he performed his job would not change.

His employer disagreed and felt betrayed that Ernst was not asking for permission and had already made up his mind.

Shortly after, he was fired.

At a recent trial, Ernst argued that he was entitled to work from home, wherever that may be, and that he did not require his employer’s consent.

However, the court disagreed.

It inferred from the language in Ernst’s contract that the intention was that he would work from Canada.

As a result, when he moved to Mexico without permission, he breached the terms of his own agreement.

Even as a work-from- home employee, Ernst simply lost sight of who was entitled to call the shots. When this occurs, an employer may be able to treat the employee’s actions as insubordination, or worse, as Ernst learned — cause for his own dismissal.

Daniel A. Lublin is an employment lawyer with Whitten & Lublin.

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