For the past four years, employers across Canada have repeatedly fallen into the same legal pitfalls while managing remote teams. According to prominent employment lawyer Howard Levitt, the courts have taken note of these missteps, and employees have been quick to capitalize on them. In a recent analysis, Levitt argues that the shift to remote work does not inherently strip employers of their managerial authority. Instead, it penalizes those who fail to exercise that control with clarity and reason.
The Critical Need for a Written Remote Work Agreement
Levitt identifies the most significant blunder as treating remote work arrangements as informal, handshake deals. Canadian courts are likely to view such arrangements as binding contractual terms. To avoid this trap, every employer must implement a formal, signed remote-work agreement. This document should explicitly state that remote work is not a permanent guarantee and that the employer retains the right to alter or revoke the arrangement with reasonable notice.
The agreement should also clarify that office attendance requirements can change based on business needs, outline the potential use of productivity monitoring tools within legal limits, and stipulate that the employee is responsible for maintaining a safe and appropriate workspace at home. Without these provisions, a judge may rule that the remote setup was intended to be permanent, and any attempt to change it could constitute a constructive dismissal.
Transparency in Monitoring and Documentation
Many employers turn to surveillance software to manage productivity from a distance, but Levitt warns that opaque or inaccurate tools can backfire spectacularly in court. If an employer cannot clearly explain how the software works, what it measures, its margin of error, and how it accounts for context, they cannot reliably use its data to justify discipline or termination. Courts are not swayed by mysterious metrics.
The solution is to choose transparent, auditable systems and to never rely solely on automated monitoring for serious employment decisions. Human review and context are essential. This principle dovetails with another fundamental rule: meticulous documentation. Remote management often fails because managers do not consistently record performance issues.
Levitt stresses that Canadian courts expect a clear trail of progressive discipline. Managers should maintain detailed logs including clear instructions, deadlines, records of missed deliverables, dates of coaching conversations, and copies of written warnings. Firing an employee for cause without this documentation, especially in a remote context, is a near-certain path to a lost case and a substantial settlement payment.
Consistency is Key to Legal Defence
A final, critical point from Levitt's roadmap is the necessity of consistency. Employers who demand office attendance one week, revert to remote work the next, and then implement a hybrid model the following month create a perception of arbitrariness. Judges view inconsistent and unpredictable management behaviour as unreasonable.
Therefore, any changes to attendance or work policies must be communicated clearly, implemented fairly, and based on identifiable business needs. By adopting these disciplined practices—formal agreements, defensible monitoring, rigorous documentation, and consistent policy application—employers can reclaim managerial control in the remote work era and stop writing costly cheques to employees they have struggled to manage effectively.
