The area where this criticism most often arises is in issues of insubordination, of employees getting in trouble for failing to comply with instructions from the employer.
Hat tip to Professor Doorey for posting about the case of Gichuru v. Smith, involving a B.C. lawyer who fired an articling student for insubordination.
Articling students seldom get fired, and I'm not sure I've heard of any fired for cause. Unless you're doing something akin to stealing from your employer, it's really hard to generate just cause in a short period of time, and most articling principals would rather just finish the articling term and send you on your way. Getting fired during your articles would generally delay a person becoming a lawyer, and the Provincial Law Society would take an interest as well. It's a big deal.
Mr. Guchuru was fired after only approximately 3 months of articling, however. In that time, a number of issues had arisen which fundamentally boil down to two philosophical differences: Firstly, Mr. Guchuru appears to be of the view that he was there to put in an 8-hour day, and then he was done and off the clock; Mr. Smith expected longer hours, and more importantly expected Mr. Guchuru to be available by telephone "24/7". Secondly, Mr. Guchuru appears to have been of the belief that menial tasks were beneath his expertise, and he should not be expected to do such things.
These became major points of contention very quickly, with Guchuru insisting on inflexible 60-minute lunch daily, during which he was incommunicado (which was often a problem as Smith, when at Court, would call the office during lunch and require work done), and argued with other lawyers and staff when they assigned him work, requiring them to justify why he should do the work. There were a number of incidents of varying seriousness.
These topics were discussed on a number of occasions, and the Court found that Smith made his expectations very clear and that Guchuru failed and refused to modify his own behaviour. Accordingly, Mr. Guchuru was insubordinate, and this constituted just cause.
Observations on the Facts
Some of Mr. Guchuru's attitudes were clearly inappropriate for an articling student - a busy law practice requires flexibility in terms of meeting the requirements of the firm, and the very point of articling is to gain exposure to various aspects of working in a legal environment. An articling student should want to learn as much from as many lawyers as possible, and not just lawyers, either; admin staff and law clerks play essential roles in legal practice, and a lawyer has to understand those roles...so an articling student has a lot to learn from them. As for the hours of work, Smith is not wrong to assert that articling traditionally involves long hours, at least periodically if not consistently. (Outside of the big city firms, it's not unusual to have more of a 9-5 workday...but if there's work that needs to be done for the next morning, as a lawyer or articling student, you get it done, however late that means staying.) There is certainly a time and a place to ask people why certain work needs to get done, or to engage in a discussion about whether or not an alternate approach might be called for, but that's different from challenging them to prove that the work is necessary.
On the other hand, Smith's expectations were also a bit towards the other extreme. Expecting 24/7 availability, as a matter of course, is somewhat exceptional. When I was a junior associate in a small firm (which was largely 9-5), I had senior lawyers call me at home after hours asking me for research on short notice, and I dropped what I was doing to get it done (once even prepared and delivered a research memo, with case law in triplicate, to another lawyer's house in the late evening)...but I wouldn't expect that, by default, that would be the natural expectation. Had I been unavailable, or not answered the phone (call display being what it is), I'm really doubtful that I could reasonably have been subject to discipline for it. Might have factored into my bonus, but that's different.
Indeed, increasing numbers of lawyers are looking for work-life balance. It's a combination of cultural factors, but it stems from the fact that lawyers increasingly want and need to play a role in the home. Some articling students, for example, are single parents with child care obligations; it's simply not feasible for them - among others - to drop everything at a moment's notice to go to work, or to be available to the boss "24/7".
But, more importantly, the fact that Smith and Guchuru didn't realize that they had very different philosophies relating to hours of work and reporting structure until after the employment relationship was established...well, that speaks to a very significant human resources failure. Such expectations should be made clear at the recruitment stage. If I expect 24/7 availability from an articling student, that should be explained to that articling student up front, in the interview, and again in the offer letter. Prior to accepting an offer, an articling student should be told who will be giving them their marching orders, if only for the purpose of knowing what to expect.
The Law of Doing What You're Told
The language of master/servant, as noted above, is pretty demeaning. But I don't think that the language really captures the real principles today.
Let me start with the proposition that I am a lawyer operating my own practice. I have tasks which need to be completed, and not enough time in the day to do them. So I hire somebody else to assist with those tasks. Ultimately, they are still my tasks to complete, my clients being served, my reputation on the line, and my responsibility. So I supervise the work of my new employee, and make sure that it is completed in a way which is consistent with my brand. This is partly about quality control, but not entirely - sometimes, my way of completing a task may not be better or worse than an alternative, but there are plenty of good reasons to streamline.
I'm paying the employee to do the work, but moreover I'm paying the employee to complete the work in a fashion which adds to my practice. Which means that I dictate the expectations. This is the power that the law of insubordination affirms.
That doesn't mean that I can't accept input. If an employee has constructive suggestions for how my practice can be improved, I'm all ears. Nor does it mean that I can't delegate authority in the right circumstances. If I hire another lawyer, then I would hope and expect to quickly satisfy myself that he or she is competent and doesn't require micromanaging. However, I don't have to do either. It is a poor manager who fails to delegate and who doesn't listen to the ideas of his or her reports, but poor management doesn't generally attract the scrutiny of the Courts.
Nonetheless, there are reasonable limits to a manager's power. If I hire another lawyer and assign him menial tasks of a non-legal nature (say, cleaning the toilets), that may quickly rise to the level of constructive dismissal. A lawyer's refusal to clean toilets would probably not qualify as insubordination.
In other words, insubordination isn't simply a manner of not doing what you're told; insubordination means not doing what you are told when the direction is within your duties or reasonably appropriate to your position. And that's the crux of it: The law of master and servant doesn't give an employer limitless power, but rather it says that an employee is expected to do what he is being paid to do, and if he chooses not to do so, then the employer need not continue to pay him. Pretty simple, when put in that light.
Other Interesting Points in this Case
Smith paid Guchuru two weeks' notice when dismissing him. This could have been a mistake. Provision of notice has often been seen as condoning known misconduct (i.e. as waiving the right to fire for cause). Consider the 1964 decision in Tracey v. Swansea Construction Co. Ltd., affirmed by the Court of Appeal:
The simple position appears to me to be this. The defendant desired to dismiss the plaintiff. If there was misconduct or default sufficient to justify discharge it had one of two courses open to it. It could have summarily dismissed for cause or it could have decided to overlook, waive or condone the misconduct and terminate upon notice, or payment in lieu of notice, in accordance with the provision of the contract for termination implied by law. It could not do both, for one would operate as a repudiation of the contract for a breach thereof, and the other, conversely, would operate as an affirmation of the contract and the adoption of its provisions for termination. The fact that the defendant was in error as to the length of, or sufficiency of, the notice given could in no way alter the effect of its intention as expressed by its conduct.
This isn't consistently applied, and certainly has a number of exceptions, but there are compelling policy reasons to discourage employers from backing an insufficient offer of pay in lieu of notice with a threat of just cause. Just cause is a high threshold, and not something to be alleged lightly. It's highly improper, and a violation of an employer's duty of good faith and fair dealing, to raise tenuous allegations of just cause as a way of leveraging a better settlement. That doesn't appear to have been going on in this case, however, and the trial judge here seemed unconcerned about the fact that Smith had provided some notice.
*****
This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.
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