A recurring problem for many professionals is what to do when they are asked by employers or colleagues to engage in conduct or practices that the professional believes conflict with their obligations to their profession and, in particular, to their regulator. Professionals are sometimes concerned about engaging in professional misconduct, such as falling below the standards of their profession, if they follow directions from their employer. On the other hand, if they refuse to follow their employer’s instructions, they are concerned that they will be disciplined, or that their employment will be terminated.

The first way to avoid these issues is to insert a provision in the employment contract that states that it will not be a ground for termination or discipline, nor will the person’s employment be affected, if the employee believes, on reasonable grounds, that he or she is being asked to act contrary to the requirements of the profession. However, even if such a clause does not appear in the employment contract, there are probably some practical steps that the employee can take.

As a first step, the person should make it clear to their employer why they believe that they are being asked to do something that violates their obligations to their profession. If necessary, it may be useful to obtain a legal opinion from someone with some experience in the area for support. This will assist the employee whether he or she is able to persuade the employer or not. If the employer disciplines the person or terminates the person’s services, and fails to provide adequate notice or pay in lieu of notice, the person will wish to consider commencing a wrongful dismissal action against the employer.

Where the concern is that the person is being asked to engage in "controlled acts", within the meaning of the Regulated Health Professions Act, but the employee is not authorized to do so, the employee has some extra leverage. The RHPA makes it an offence for the employer of a person to require an employee to engage in a "controlled act" unless the employee is authorized under their profession specific legislation to do so. The employer is liable to a fine of up to $25,000.00, as are directors of the employer unless it is a public hospital, in which case only the employer is liable. Clearly, making employers aware of their potential liability will often have the effect of convincing the employer that they should not insist that the employee perform controlled acts when they are not otherwise entitled to perform them.

Unfortunately for employees, it is generally not a defence to an allegation of misconduct that their employer forced them to engage in acts that may be considered to be professional misconduct. Regulators expect their members to uphold the standards of practice of their professions regardless of the economic consequences, such as discipline on the termination of employment, although the context of the misconduct may well be considered when the proper penalty is determined.

In an age of tightened budgets and streamlined procedures, people in many professions are often asked to perform functions with which they are uncomfortable. However, professionals are obliged to make their employers aware of the problem and not engage in professional misconduct, regardless of the possible economic consequences to them.

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