Return-to-work mandates in Canada have been as popular as a bear at a picnic – unreservedly unwelcome. And some workers have gone to extreme measures to avoid a ‘true’ return, engaging in practices to circumvent policies like the ‘swipe-and-go,’ a practice where a worker swipes their workplace passcard at the office, only to turn around and head home for the balance of the day.
Lawsuit Alleges Wrongful Termination
In a recently filed Ontario lawsuit against a major Canadian telecom, dozens of former employees are seeking millions of dollars in damages after being terminated for alleged “swipe-and-go” behaviour. The employer alleges that employees entered the office to satisfy attendance requirements, then immediately left, breaching its code of conduct. The employees tell a very different story. They allege the terminations were part of a broader cost-cutting strategy disguised as misconduct, relying in part on allegations from an internal whistleblower. None of these allegations have been proven in court, and the employer has stated it will vigorously defend the claims.
Legal Hurdles for Employers
The legal issue is not whether employers can require employees to return to the office. In most cases, they can. The real question is how those policies are enforced. One of the central allegations is that the employer tolerated the alleged “swipe-and-go” practice for months, if not years, before suddenly treating it as serious misconduct worthy of dismissal for cause. That presents a difficult legal hurdle. 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. It eliminates 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. Where allegations of misconduct arise alongside workforce reductions or cost-cutting initiatives, courts may scrutinize the employer’s motives particularly closely.
Ethical and Practical Concerns
Even if an employer may have tolerated the practice, there is something inherently uncomfortable about allowing employees to engage in a practice that promotes dishonesty or mischaracterization about their whereabouts. Also, it’s extremely unproductive to head all the way to work to ‘swipe in’ and then waste working hours heading back home. That doesn’t sit quite right and it will be interesting to see how this practice is considered by the court.
Lessons for Employers
While few organizations will face litigation of this magnitude, the lessons apply to employers everywhere. First, return-to-office policies should be introduced thoughtfully. Moving employees from remote work to several mandatory office days may, in some circumstances, expose an employer to constructive dismissal claims, particularly where employees were hired remotely or have worked remotely for an extended period. A gradual rollout with advance written notice is often the safer approach.
Second, consistency matters. Before imposing discipline, employers should ask a simple question: Have we been allowing this until now? If the answer is yes, the appropriate response is usually to communicate a clear expectation going forward – not to immediately terminate employees.
Finally, transparency matters just as much as enforcement. Employees are far more likely to accept difficult workplace changes when employers explain the business rationale, provide sufficient notice to allow people to adjust childcare and commuting arrangements, and apply the rules consistently across the organization. Workplace morale deteriorates quickly when employees believe policy changes are simply a vehicle for reducing headcount.
Return-to-office policies are relatively easy to announce. The legal risk almost always lies in how they are enforced.
