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Nortel, robo-calls and refusing unlawful employer instructions

Employers normally have the right to expect that instructions to employees will be faithfully carried out. But what happens when the employer asks that employees do something dodgy or potentially illegal? While not proven, there have been allegations that senior managers at Nortel asked other staff to manipulate accounting entries for the purpose of triggering bonuses to those managers. Similarly, staff who worked at a Thunder Bay call centre have been reported in the media as claiming their employer knowingly had them provide false information about poll locations on voting day in last spring’s federal election. What would you do when faced with an employer request you felt might not be within the law?

While the normal rule is that employers have every reason to expect employees will follow instructions given, this right is not absolute. And in some cases, employees may be fully within their rights to refuse to act on improper employer requests.

Under the Ontario employment standards, there are a limited number of circumstances under which employees, otherwise covered by those standards, may refuse employer requests:

  • Except in emergencies, there are limits on the number of hours employees may be required to work, without their consent. For example, without a variance or an emergency, most employees may not be required to work more than 48 hours in a workweek.
  • Except in emergencies, most employees must have at least one day free from work, after six consecutive days worked, or at least two consecutive days free from work, after ten consecutive days worked.
  • Except in continuous operations and certain retail businesses, such as restaurants and hotels, employees entitled to holiday pay for a statutory holiday also have the right to refuse to work on that day.
  • Employees, including job applicants, may refuse to take lie detector tests.
  • Except in certain retail business, most employees have the right to refuse work on a Sunday.

Employees who have the right to refuse such work, may also freely agree to it. Similarly, where employees exercise their right of refusal, employers are prohibited from imposing consequences on these employees.

Similarly, under the Ontario Occupational Health and Safety Act, employees may refuse to work in circumstances they feel are are dangerous, including threats of violence in the workplace. This right may be exercised where employees have reasonable grounds for considering such a danger exists. Employees’ right to refuse work in these circumstances is protected, even if ultimately it is determined that no such danger existed in fact. This means employees may continue such a refusal pending the outcome of an investigation of their concerns. Where such an employee right to refuse unsafe work exists, employers may not impose consequences for exercising the right.

But barring either the Ontario employment standards or the Occupational Health and Safety Act, it’s the common law that determines what consequences flow when employees refuse to follow employer requests. Generally, under the common law, employees who fail to carry out employer instructions may either be terminated for cause or may be seen as having abandoned the employment.

There seem to be few cases of employees challenging such consequences, in circumstances when employees claimed their refusal stemmed from unlawful employer requests. However, in Roden v. Toronto Humane Society, 2005, two former employees of the Toronto Humane Society claimed the employer, after losing its contract with the newly merged City of Toronto, had no legal basis for putting stray dogs and cats up for adoption. Based on this claim, these two employees refused to follow the employer’s instructions, which ultimately led to their being terminated for cause. In the resulting court cases, the Ontario Court of Appeal upheld the lower court ruling that these employees had not demonstrated the unlawful nature of the employer’s instructions. Unfortunately, in making this ruling, the courts provided no legal guidance as to what might be sufficient evidence in such circumstances. The Toronto Humane Society later achieved notoriety when five of its senior managers, including those acting on behalf of the employer above, were charged with cruelty to animals. These Criminal Code charges were later stayed, before being tried on their merits, because of problems with search warrants used to gather evidence in the case.

Alan McEwen & Associates
armcewen@cogeco.ca

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Alan McEwen

Payroll consultant at Alan McEwen & Associates
Alan R. McEwen‘s involvement in payroll spans over 20 years. As a practitioner, he has implemented and managed outsourced payroll operations for both large and small employers. As a consultant, he has worked with many organizations, public and private, on HR/payroll process re-engineering, strategic systems decisions and forensic payroll audits. Read more
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