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There are exceptions to willful disobedience

In most cases, if you willfully disobey a direct and clear order from your employer, knowing that it will lead to your termination, and the directive from the employer is within the realm of their authority, you can be terminated without a severance package. But, as ever, there are exceptions.
 
Elyssa worked as a caregiver in seniors’ residence for 13 years. She had almost a perfect attendance and every performance appraisal she ever received was positive.  She got a raise every year and was one of those employees who went the extra mile, always.
 
An 87-year old woman that Elyssa took care of had been a traveler all her life. She wanted to take one last cruise before her health stopped her. She booked the trip and hired a caregiver to go with her. A month before the trip, the caregiver pulled out.
 
The resident turned to Elyssa and asked her if she would go with her and said that she would pay for the cruise. About a three weeks before the trip, Elyssa booked the time off and told her employer what she was doing.
 
About five days before the trip, the employer called Elyssa into a meeting and told her that her plan to take the cruise was a violation of the Employer’s Policy about outside employment and acceptance of gifts and gratuities from Residents. She was told that if she took the trip, she would be terminated.
 
Elyssa told the employer that she was very concerned that the resident would not be able to find somebody else to go with her at this last minute. Elyssa explained that she was not being paid to go on the trip. The employer said that accepting the free cruise was a gift that she could not accept. Elyssa said that in that case she would pay for her own ticket.
 
Two days later, Elyssa was called into another meeting. Now the employer told her that going on the trip was crossing over the caregiver-client relationship and stated again that if she took the trip she would be fired.
 
Elyssa pointed out that a program called Community Outreach was staffed voluntarily by employees of the seniors’ home who were paid to accompany residents who needed to take trips within the community. From Elyssa’s perspective, while this trip involved going abroad, there was no difference in principle. A resident needed to leave and needed somebody with them to do it.
 
Elyssa was torn and decided to take the trip anyway. When she got back she found a registered letter signed on the day of the last meeting, two or three days before she went on the trip, indicating that her employment was terminated. But the reason had changed. Now she was told that she was being fired because taking the trip crossed the caregiver-client therapeutic relationship. Elyssa had never heard that term before. Elyssa sued for wrongful dismissal, claiming that there was not just cause for her termination and she should have been provided with pay in lieu of notice based on her age, seniority and level of responsibility.
 
 
At trial, there was some dispute as to whether Elyssa had been properly made aware of the policies of the employer as they were first published. The fact is, whether or not she was aware of them when they were first published she was shown them at the two meetings.
 
The Judge said that the test was whether or not Elyssa refused to perform an essential condition of the employment contract or engaged in behavior totally incompatible with her obligations to the employer. The Judge decided that Elyssa’s behavior did not constitute repudiation of her employment and implied that some sort of progressive discipline short of termination would have been more appropriate.
 
He noted that the Employer’s Mission Statement was to provide “compassionate quality care, housing and related services to enrich the lives of those we serve and those who serve them”. The Judge thought that Elyssa was the only one taking that mission statement seriously. She was awarded 10 months’ lost wages after her 13 years of service and the employer had to pay for her lawyer.
 
Elyssa’s case was a close call and I think she could have easily lost. Elyssa was a health care provider and there are boundaries which have to be honoured. Employers are, not surprisingly, paranoid about the thought of being sued by the family of a resident or criticized for allowing employees to get too close to residents.
 
Some would argue that whether or not anyone else thinks the direction from the employer is reasonable, it is their direction to make. It is their business to run.
 
On the other hand, given that Elyssa could have gone on a day trip with the resident through Community Outreach and been paid, the Employer’s direction not to take the trip and terminating her for disobeying that direction did appear unreasonable even though this was a longer trip.
 
This was not a hands down case.  If Elyssa had consulted me the day before she took the trip, I would have told her that she has a decent chance of winning and a decent chance of losing, no guarantees. Ultimately, the Judge decided that the employer was just being plain stupid, regardless of principles about willful disobedience and just cause. Regardless of legal arguments, judges are human and if something does not smell right, the outcome is unpredictable.
 
As published in the Hamilton Spectator, July 26, 2010
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com