Who’s the boss?

By Shaun Bernstein and Stuart Rudner

When we provide counsel to employers, we continually repeat one key phrase: “Your workplace, your rules.”

Generally speaking, an employee’s refusal to carry out her superior’s directions will constitute insubordination. When it comes to governing employee conduct, employers really are in the driver’s seat.

So long as the employee is not being ordered to do anything illegal or completely outside the scope of her duties, the employer more or less has free reign.

Occasionally, an issue arises where an employee refuses to follow his employer’s directions due to a moral objection. Simply put, he may have a moral disagreement with what he has been asked to do, and the question arises: Does this refusal constitute insubordination?

In a recent decision of the Ontario Court of Appeal, the Christian Medical and Dental Society of Canada challenged the College of Physicians and Surgeons of Ontario’s policy that physicians who refuse to perform certain procedures due to their own medical or ethical reasons must refer the patient to a colleague who will provide those services.

Groups of physicians challenged the policies, claiming that providing the referrals infringed on the doctors’ freedom of conscience and religion under the Canadian Charter of Rights and Freedoms. The policies were upheld at the Divisional Court, and the doctors then brought their challenge to the Court of Appeal.

After a thorough Charter analysis of the implications on doctors’ and patients’ rights and freedoms, the Court of Appeal ruled that any personal or moral challenges the affected physicians may have with these policies were far outweighed by the harm that would be done to vulnerable patients if these referrals were not made.

The court concluded that the policies “strike a reasonable balance between patients’ interests and physicians’ Charter-protected religious freedoms,” since the physicians are not mandated to provide services they morally disagree with, but they cannot then impede their patients’ access to those same service.

To clarify, this is not inherently an employment law matter, and doctors do not work, at least in a traditional sense, for their governing body. Yet most self-regulated professions have similar restrictions and requirements. Like doctors, lawyers take an oath upon beginning their careers to provide faithful and unbiased service for their clients. While there are ways that lawyers can terminate a dysfunctional or problematic lawyer-client relationship, the lawyer's first duty is to their clients.

So, what happens in more traditional workplaces when the employer implements policies, procedures, or tasks the employees morally or ethically disagree with?

In Roden v. Toronto Humane Society, two Humane Society employees refused to implement their employer’s policies on accepting stray animals. After the society went through a series of policy changes, two employees wrote to management stating that they believed the society’s adoption policies were unlawful and in violation of the society’s code of business conduct. ‘

The society obtained numerous legal opinions that stated the conduct was not unlawful, and portions of these opinions were shared with the employees. Senior management met with the employees several times to discuss their concerns and instruct them to continue to follow the new policies.

Nevertheless, the employees refused and stopped attending work. The two were summoned into separate meetings two weeks later, where their employment was terminated. At trial, the court ruled that the two employees’ refusal to follow orders amounted to willful misconduct. The matter was appealed, and the Court of Appeal confirmed that the refusal to follow orders amounted to a repudiation of their employment contracts.

The court held that “where an employee has a reasonable excuse for refusing to perform, such a refusal may not constitute repudiation.” However, in this instance, they had the opportunity to fully explore their concerns with senior management and yet still refused to perform their duties, and thus were deemed to have made the decision to end their own employment.

Because the employees were the ones who chose to end the employment relationship, the Court of Appeal ruled that they were not entitled to damages for wrongful dismissal.

As we said at the outset, employers have the right to set out the rules of the workplace. They also have the right to expect that employees will follow reasonable direction. An employer cannot order an employee to do anything contrary to the law, such as violate the Employment Standards Act (ESA).

No employee governed by Ontario law can have the terms of her employment contravene the ESA, and the Ministry of Labour frequently investigates employers that are in violation of the law.

Additionally, employees are protected from reprisal under the ESA, and cannot be penalized by their employer for asking it to comply with the ESA, making inquiries about the ESA, filing a complaint, or otherwise asserting their rights under the law.

An employer also cannot force an employee to do anything unsafe, or to work in unsafe conditions. Under the Occupational Health and Safety Act, employees not only have the right to a safe workplace, but also the right to refuse unsafe working conditions. Employers are obligated to maintain a safe workplace, and can be penalized severely under the law for putting employees in peril.

Yet beyond these limited contexts, employers have relatively unfettered jurisdiction as to how their workplace operates. Employers can draft and implement policies on a wide variety of issues to regulate the workplace and the working relationship, to the most minute details, such as prohibiting employees from displaying their personal effects at their work stations.

Unless the directions are discriminatory, illegal or unsafe, the bottom line is generally “your workplace, your rules.”

And as the employees in Roden discovered, an ill-advised refusal to carry out orders can have a disastrous impact on your career.

Shaun Bernstein is an associate at Rudner Law in Toronto.