For nearly four years, many employers who manage remote employees have been falling into the same legal traps, over and over again.

The courts have noted this and the employees have made juicy profits. However, this situation is not a given of human existence.

With rigorous, consistent and documented management practices, employers can:

  • Reaffirming their leadership power

  • Reduce the risk of constructive dismissal

  • Effectively supervising teleworking

Here is the essential legal roadmap.

1. PUT THE CONDITIONS FOR TELEWORKING IN WRITING AND MAKE THEM CONDITIONAL

The biggest mistake employers make is treating teleworking as a simple temporary concession. In Quebec and Canadian law, the courts tend to see it as an explicit condition of the employment contract.

Every employer should have a written policy or agreement signed that clearly states that telework is not a grandfathered right, the employer can modify or withdraw telework, at their discretion, with reasonable notice, the requirements for being in the office can evolve according to operational needs, productivity monitoring or monitoring tools can be used, in compliance with applicable laws and the employee must maintain a safe and adequate work environment.

Otherwise, a court may conclude that telework has become permanent and that any unilateral modification constitutes constructive dismissal. Despite an increasingly voluminous case law, many employers continue to ignore this legal reality.

2. AVOID SURVEILLANCE TECHNOLOGIES THAT ARE IMPOSSIBLE TO JUSTIFY

Monitoring software is often implemented due to a lack of confidence in remote management. However, opaque or unreliable tools create more risks than they solve.

If you are unable to clearly explain what the software is measuring, how it works, its error rate, and how it takes into account the actual context of the job, you should not rely on this data to discipline or terminate employment.

Quebec and Canadian courts are wary of automated indicators. If monitoring tools are used, they must be transparent, verifiable, and subject to human validation. They should never be the sole basis for dismissal.

3. DOCUMENT PERFORMANCE OR WAIVE TERMINATION FOR CAUSE

Remote management rarely fails because of remote work itself, but rather because of a lack of documentation. Managers should be required to maintain a performance record that includes, among other things, clear expectations and timelines, evidence related to remote tasks, dates and content of follow-up meetings, observed deficiencies , and written disciplinary opinions.

In employment law, a dismissal for cause generally requires progressive discipline . Without written evidence, the employer almost inevitably exposes itself to a conviction.

4. BE CONSISTENT

The courts sanction arbitrariness. Requiring presence in the office one day, backing down the next, imposing a hybrid mode the next, and then changing course again seriously undermines the credibility of the employer.

Any changes to the attendance rules should be clearly explained, given reasonable notice, and applied consistently and based on a documented economic rationale.

An inconsistent policy weakens the employer’s legal position. However, it is still possible to maintain telework for high-performing employees and refuse it to those for whom it does not work, provided that the criteria are clear, objective and well documented.

5. TRAIN MANAGERS

The majority of conflicts related to teleworking are, in reality, management failures. Poorly trained managers supervise inadequately, communicate expectations poorly, apply discipline unevenly, and neglect documentation.

Targeted training should include remote performance evaluation, virtual coaching, recording performance issues, and keeping minutes of virtual meetings.

A modest investment in training often avoids costly litigation.

6. AVOID RASH PROMISES

Telling an employee, “you can work from home,” “you’ll never have to come back to the office,” or “this agreement will always be flexible” can have significant legal consequences. These statements can be interpreted as contractual commitments. If a return to the office is still possible, even in the long term, this should be made clear from the outset and ideally the
put in writing.

Summary: Common mistakes and legal risks

Common MistakeLegal Risk
Telework not regulated in writingConstructive dismissal
Opaque surveillanceEvidence rejected by the court
Lack of documentationAlmost certain conviction
Inconsistent policiesLoss of legal credibility
Verbal PromisesImplied Contractual Undertaking

Conclusion

Teleworking is not the problem. Bad management is.

The courts do not favour workers; they promote clarity, consistency , and proof. The majority of convictions against employers stem from a lack of documentation, unclear policies, inconsistent enforcement, poorly chosen monitoring tools, and reckless promises.

Correcting these elements reduces legal exposure. Telework does not take away the employer's power of direction, but rather penalizes those who do not exercise it properly.

FAQ – Teleworking and legal risks

1) Is telework an acquired right in Quebec?

No, telework is not an acquired right under Quebec law. However, it may become so in certain cases, for example when the employer authorises telework for an extended period of time without a written framework and without indicating whether it is temporary or conditional.

The courts may then consider that it is an implied term of the employment contract. A forced and unanticipated return to the office may be considered as a unilateral change in essential working conditions, in particular when:

  • No reasonable notice

  • No operational justification

  • Telework was described as fixed or permanent

2) Can an employer force a teleworker to return to the office?

Yes, an employer can impose a return to the office, but this decision must respect certain legal limits to avoid a conflict. The return should in particular:

  • Be notified with a reasonable period of time

  • Rely on real operational needs

  • Be applied consistently

A sudden or targeted forced return, especially if teleworking has never been formalised in writing, can be considered as a disguised dismissal.

3) Is software for monitoring remote employees legal?

Spyware is not illegal in itself, but its use is highly regulated by privacy laws. They must pursue a legitimate management aim, be proportionate and be implemented in a transparent manner.

The courts are very suspicious when a disciplinary sanction or dismissal is based solely on automated data, without human validation or without consideration of the actual context of the work.

4) Can an employee who is teleworking be dismissed for professional inadequacy?

Yes, but the conditions are strict The employer must prove that the expectations were clear, that the shortcomings were brought to the employee’s attention and that the employee had a reasonable chance to improve.

Dismissal for cause usually requires progressive discipline documented in writing. In telework, the lack of written proof very often leads to the cancellation of the dismissal.

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Compagnie abg conseils juridiques assists entrepreneurs in the legal framework of teleworking and the resumption of control of internal practices. We identify legal risks, verify compliance with policies and intervene in disputes related to employer liabilities.

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