The Law of Work
  • Home
  • About
  • Professor David Doorey
  • Osgoode Hall LLM
  • Books
  • Guest Contributors
  • Useful Links
    • Archive
  • Home
  • About
  • Professor David Doorey
  • Osgoode Hall LLM
  • Books
  • Guest Contributors
  • Useful Links
    • Archive
The Law of Work
Law of Work Archive

'Insubordinate' Articling Student Dismissed For Cause

by David Doorey May 28, 2013
written by David Doorey May 28, 2013

A lawyer in British Columbia has lost his wrongful dismissal case against a law firm that fired him for insubordination.  The employee had articled for less than 3 months when he was contractdismissed for cause (although the employer gave the employee 2 week’s pay in lieu of notice).  The main complaints of the employer were that the articling student believed he was entitled to take a full hour of lunch every day out of the office, and that he engaged in a debate over whether he should be required to complete many work assignments.  The employee was also highly confrontational with lawyers and staff.
The case is called Gichuru v. Smith.
Reasons
The Court begins by citing the usual test for wrongful dismissal:

Absent a fixed term contract or contractual notice provision, it is an implied term of an employment contract that an employer may dismiss an employee at any time by giving the employee reasonable notice or payment in lieu.  However, if the employer shows cause, the employee may be dismissed without notice or payment in lieu

The court then cites the leading B.C. authority on summary dismissal for insubordination, Stein v. B.C. (Housing Management Commission) (1992, BCCA):

Wilful disobedience can be a ground for immediate dismissal.  Madam Justice Southin’s judgment in Stein v. British Columbia (Housing Management Commission) 1992 CanLII 4032 (BC CA), (1992), 65 B.C.L.R. (2d) 181 (C.A.) has been cited many times on this point.  Madam Justice Southin wrote (highlighting the contextual nature of the inquiry), at pp. 185-186:
I begin with the proposition that an employer has a right to determine how his business shall be conducted. He may lay down any procedures he thinks advisable so long as they are neither contrary to law nor dishonest nor dangerous to the health of the employees and are within the ambit of the job for which any particular employee was hired. It is not for the employee nor for the court to consider the wisdom of the procedures. The employer is the boss and it is an essential implied term of every employment contract that, subject to the limitations I have expressed, the employee must obey the orders given to him.
It is not an answer for the employee to say: “I know you have laid down a rule about this, that or the other, but I did not think that it was important so I ignored it.”
But it may be an answer, on the question of whether disobedience is repudiatory, that the employer so conducted himself that the reasonable man would conclude, and the employee did, in fact, conclude, that the employer considered the rule of little or no importance.

Applying this legal test to the fact, the judge ruled that the law firm has cause to dismiss the articling student for insubordination:

I find that [the employee] was insubordinate.  He did not accept that Mr. Smith [the employer] had the right to determine how HS&C and the business of the firm were to be conducted.  When Mr. Smith told [the employee] what he expected in terms of [his] availability to do the work [he] was hired to do, [the employee] rejected it as unreasonable and unfeasible and expected Mr. Smith to justify what he was asking [the employee] to do before [he] would do as instructed.  But it was not for Mr. Smith to justify work terms to [the employee].

The employee was warned at a meeting that his behaviour was unacceptable, and the judge finds that the employee’s attitude and behaviour did not subsequently change:

Despite having been warned at the April 18 meeting that his conduct was unacceptable, apart from April 19 (when he stayed at the office, “feeling miserable”), I find that [the employee] did not alter his behaviour.  [The employee] does not dispute this.  When Mr. Smith again attempted to reach [the employee] over lunchtime, he could not.  Although it was a very serious step, I find that, at that point, Mr. Smith was justified in terminating [the employee’s] employment.  In my view, [the employee] had demonstrated quite clearly by his conduct that he found the working conditions Mr. Smith set for him to be unacceptable and that he would not accept them.  I conclude that [the employee’s] behaviour was such that the employment relationship could no longer viably subsist.

Issues for Discussion
The ‘implied term’ in employment contracts requiring employees to do as they are told, without debate, is a carry over from old Master and Servant laws.  Judges have reasoned that, in exchange for their wages, employees have impliedly agreed to subject themselves to the commands of the employer.  
Do you agree with that reasoning?   Would the employment relationship change if the implied duty to obey employers orders were removed from the common law of employment?
In this case, the employee argued he should have a right to take a lunch break during which he is not interrupted by demands from his boss.  The employer reminded him that the Employment Standards Act doesn’t apply to articling students.  Do you think that the ESA should apply to articling students?  Should the law require articling students to be paid overtime, and receive regular lunches and other breaks?

4 comments
0
FacebookTwitterLinkedinEmail
David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is Academic Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and a Senior Research Associate at Harvard Law School’s Labor and Worklife Program. Professor Doorey is a graduate of Osgoode Hall Law School (LL.B., Ph.D), London School of Economics (LLM Labour Law), and the University of Toronto (B.A., M.I.R.).

Leave a Comment Cancel Reply

You must be logged in to post a comment.

previous post
Why Do Workers Support Policies To Weaken Labour Rights?
next post
SCC Heating Today: Can a Law Prohibit a Union from Recording and Publishing Names, Images of People Who Cross a Lawful Picket Line?

You may also like

This Blog Entry is About the Lunacy of...

July 21, 2019

A Cross Country Update on the Card-Check versus...

October 3, 2018

The Folly of Not Voting to Strike in...

September 16, 2018

Unifor Posts Photos of Replacement Workers as Gander...

September 10, 2018

A Wrongful Dismissal Case and the Absence of...

August 29, 2018

China Said to Quickly Withdraw Approval for New...

August 27, 2018

The Latest Hot E-Commerce Idea in China: The...

August 27, 2018

The Trump Administration Just Did Something Unambiguously Good...

August 27, 2018

Unstable Situations Require Police In Riot Gear Face...

August 27, 2018

Trump’s War on the Justice System Threatens to...

August 27, 2018

Follow Us On Social Media

Twitter

Latest Tweets

David J. Doorey🇨🇦 @TheLawofWork@mas.to Follow

Law Prof. Talking #labor & #employment #law to the masses. @YorkUniversity @OsgoodeNews @LSELaw @CLJEHarvard @Jacobin @OnLaborBlog https://t.co/5V9r8VPHsh

TheLawofWork
thelawofwork David J. Doorey🇨🇦 @TheLawofWork@mas.to @thelawofwork ·
10h

I can’t believe that Almost Famous came out 23 years ago.

Time is flying by.

Reply on Twitter 1622776388179705859 Retweet on Twitter 1622776388179705859 3 Like on Twitter 1622776388179705859 14 Twitter 1622776388179705859
thelawofwork David J. Doorey🇨🇦 @TheLawofWork@mas.to @thelawofwork ·
11h

I had an LLM student who had a part-time job phantom writing labor arbitration decisions based on arbitrator’s notes and instructions.

Like law clerks do for judges (except parties don’t know about the phantom arb writer).

Is using a machine different? Interesting debate.

Valerio De Stefano @valeriodeste

The crucial part starts on p. 5, where the Court reports the answers to the legal questions they posed to ChatGPT. Then, at the end of p. 6, the Court adopts the arguments given in these answers as grounds for its decision.

Reply on Twitter 1622759377944952834 Retweet on Twitter 1622759377944952834 5 Like on Twitter 1622759377944952834 8 Twitter 1622759377944952834
thelawofwork David J. Doorey🇨🇦 @TheLawofWork@mas.to @thelawofwork ·
12h

Quebec passed anti-scab legislation in 1977, BC in 1993, & Ontario 1993-95.

Hysterical claims that these laws cause job losses & loss of investment aren't supported by evidence. Businesses just don't like them.

Short 🧵

1/

Seamus O'Regan Jr @SeamusORegan

We’re banning replacement workers, as we said on Oct. 19th.

We’re working with unions and employers to get the balance right.

As agreed, government will introduce legislation by the end of this year.

Reply on Twitter 1622745098088861702 Retweet on Twitter 1622745098088861702 16 Like on Twitter 1622745098088861702 39 Twitter 1622745098088861702
Load More

Categories

  • Alberta
  • Artificial Intelligence
  • Australia
  • British Columbia
  • Charter of Rights and Freedoms
  • Childcare
  • Class Action
  • Climate and Just Transition
  • Collective Bargaining
  • Common Law of Employment
  • Comparative Work Law
  • competition law
  • construction
  • COVID-19
  • Diversity
  • Employee Classification
  • Employment Insurance
  • Employment Regulation
  • Europe
  • Financial Industry
  • Fissured Work
  • Freedom of Association
  • frustration of contract
  • Gig Work
  • Health and Safety
  • Health Care
  • Human Rights
  • Immigration
  • Interest Arbitration
  • International Law
  • Labour Arbitration
  • Labour Economics
  • Law of Work Archive
  • Legal Profession
  • Manitoba
  • Migrant Workers
  • Minimum Wage
  • Newfoundland
  • Nova Scotia
  • OLRB
  • Ontario
  • Pension Bankruptcy
  • Privacy
  • Public Sector
  • Quebec
  • Real Life Pleadings
  • Saskatchewan
  • Scholarship
  • Sports Labour
  • Strikes and Lockouts
  • Student Post
  • Supreme Court of Canada
  • technology
  • Transnational Law
  • Uncategorized
  • Unions and Collective Bargaining
  • United States
  • Videos
  • Women and Work
  • Wrongful Dismissal
  • Home
  • About
  • Guest Contributors
Menu
  • Home
  • About
  • Guest Contributors
  • Legal Scholarship
  • Useful Links
  • Archive
Menu
  • Legal Scholarship
  • Useful Links
  • Archive

2020. Canadian Law of Work Forum. All Rights Reserved.