Shortly after obtaining her real estate license, Marilyn Patterson found herself in a pickle. Patterson, a customer service supervisor for the Bank of Nova Scotia in Pitt Meadows, B.C., was summoned to a meeting and told that her work as a realtor may conflict with her employment at the bank.
Patterson saw matters differently. She had performed other part-time work outside of the bank and without any objection., and other employees had second or third jobs, which the bank did not oppose.
When it came to her work as a part-time realtor, however, the bank decided to take a stand, arguing that by recommending financial services and products at the bank, Patterson could be in a “potential” conflict with her work in real estate. Patterson was told to abandon her work as a realtor otherwise she would be fired.
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But Patterson was defiant, refusing to consider searching for another non-conflict position at the bank and refusing to resign. Therefore, the Bank felt it had cause to terminate her and it did, without any severance. Patterson was not about to go quietly, suing the bank and claiming that its ultimatum was unreasonable.
At a recent hearing, Justice Bryce Dyer agreed with the bank and dismissed Patterson’s claim. According to him, Patterson’s refusal to abandon her work as a realtor once instructed to do so amounted to disobedience that was serious and not capable of being forgiven. The key to his decision, however, was not that Patterson had performed work as a realtor but that she was told to give it up or lose her job. Since this direction was reasonable, the bank had done nothing wrong.
This case illustrates two of the most prevalent principles in workplace law. First, the judge you happen to draw often makes a difference in the final outcome. Here, Justice Dyer viewed the bank’s directive as reasonable but that does not mean that another judge would. Second, Patterson was given a choice to abandon her outside work or keep her job. In my experience, had the bank just terminated her without advancing this option, she would have been cashing settlement cheques by now.
• Daniel Lublin is an employment lawyer with Whitten & Lublin LLP.