Employment relocation can have a significant impact on your personal life. This may not stop your employer from trying to make you relocate. Whether the employer is entitled to relocate you, or whether it constitutes constructive dismissal, depends on the circumstances of your employment.
Expectations of the parties
The first question is whether you knew or agreed that relocation was a possibility when you started the employment.
Your acceptance is most obvious when the employment agreement includes a valid relocation or "mobility" clause. This gives the employer the right to move you to another location. If such a clause exists, the employer can probably make you relocate, within the bounds of the clause. So if the clause anticipated moving between offices in Greater Vancouver, the employer could not lawfully make you relocate to Victoria. You might agree to do so, but it would not be a requirement of the employment.
Even if your initial hiring contract did not contemplate relocation, this may have become a term later. For example, you may have been promoted and signed a new contract with a relocation clause in it. Often we see an expectation of mobility for senior employees, that does not exist for more junior employees.
If the employment contract does not have a relocation clause, but you knew that relocation could occur, then the employer may be entitled to relocate you. Here are two cases that illustrate the point.
In the first case, the employee accepted employment knowing her division would be relocated from Calgary to Fort McMurray soon after hiring. She did relocate, and accepted $35,000 in moving costs from the company. She then quit her job and went to a different company in Fort McMurray. The employer sued for the return of its moving costs. The employee claimed she had been constructively dismissed by the relocation, and that moving costs were not repayable. The court found the employee was not constructively dismissed, because she had known in advance of the upcoming relocation. She had to repay the moving costs.
In the second case, the employer decided to move offices from Vancouver to San Francisco, but had never told its employees relocation would be required. One employee refused to move, and the employer treated her as having resigned. This was a wrongful dismissal. The employer had no right to relocate the employee, who could not be treated as having resigned. She was entitled to 12 months of reasonable notice, including payment of significant bonuses she would have earned during the 12-month notice period.
Significance of the relocation
The next important question is the impact the relocation has on you. This question looks at both the impact on your life, such as whether you will be moved away from family, and on your position, such as whether you will be performing the same duties or have the same reporting structure. The more impactful the move, the less likely the employer has the right to relocate you.
Significant moves, like to another country or city, will usually need advance agreement. If the move is more local, then the impact of relocation is weighed against the importance of the position. In one case, an employer tried to force a relocation that added forty minutes to the employee’s commute. This constituted constructive dismissal. The employee was entitled to work from the office in her town, and could not be forced to move.
If you have a high-ranking position that you will maintain after the relocation, you may be expected to accept relocation.
Can the employer force the relocation?
If the employer has no contractual right to relocate you, they have another option. The employer can make changes to your employment by giving you advance reasonable notice of the change. This includes changes to your location. So if you have worked at a company for five years, and they wish to relocate you but have no contractual right to do so, they may give you advance reasonable notice of the relocation – probably in the range of five to eight months, depending on the particulars of your employment. The length of notice required before the relocation would be equal to either the contractual amount of notice required for termination or the reasonable notice period if the contract does not set out the required notice.
If you refused to relocate at the end of the reasonable notice period, the employer could terminate your employment. Determining whether you had the right to refuse, or whether the employer lawfully terminated, is a question that usually requires the expertise of an employment lawyer. It can mean the difference between quitting and a significant severance entitlement.
If your employer is trying to relocate you, the answer is not as simple as deciding whether you would like to move to the new location. The expectations of both parties need to be considered, as well as the impact the relocation will have on you. If you are faced with relocation, contact us to learn your rights and determine the best path for you.