At Musings on Project Management, John Goodpasture recently posted his reflections on whether the project manager is a fiduciary. He asks the rhetorical questions, “At some point, some ox is going to get gored. And then who blames the fiduciary? And to what risk is the fiduciary held?”
It’s an interesting question, and it seems the answer, like most questions rooted in law, depends on jurisdiction. Note that this is not legal advice and I am not an attorney—I’m just some guy with a little knowledge of employment practices in a few countries. An actual labor attorney could fill at least ten pages with critical comments on the next few paragraphs before pausing to refill her coffee cup. That caveat aside here is my response.
In the US, every state but Montana has adopted the doctrine of employment at will. In other words: an employee can be terminated at any time, for any reason—with a few exceptions spelled out by law. That uniquely American principle aside, all employees, including at-will employees, are subject to the law of agency—they are agents of their employers. As such, they are subject to the general fiduciary principle, which centers on loyalty: the employee will not compete with their employer, solicit the employer’s customers, clients or employees prior to the leaving the company, use work time to further the employee’s own interests, or misappropriate confidential information or trade secrets of the employer by sharing that information with the new employers. There is also a duty to account for profits and to deal fairly with his or her employer in all transactions between them. Finally, there is usually a duty to disclose the existence of conflicts or adverse information to the employer, even if the employer is not harmed by the undisclosed adverse interest or information.
Note that this fiduciary relationship is between employer and employee, rather than between subordinate and manager. Also, note that the duties constrain the actions of the fiduciary; they do not contemplate outcomes. While you can certainly be terminated in the general outrage over the impact a project might have on some power center of your company, that possibility arises from at-will employment, rather than the fiduciary duty. In other words: they can fire you, but they can’t sue you to recover damages.
In the UK, the terms of employment are governed by contract, whether explicit or implicit. In the event of a dispute where no contract document exists, the courts will decide what the terms of the contract are by reviewing the Employment Statement and other supporting relevant material. While you can be dismissed at any time, the employer must show that they have a justifiable, valid reason and that they acted reasonably, given the circumstances.
Under UK common law, the officers and directors of a company have a fiduciary duty to the corporation, while the employees generally do not. In the recent UK case of Ransom v Customer Systems Plc, the Court of Appeal found that the employee’s contract did not create duties equivalent to the loyalty required of a fiduciary. In an ordinary employment contract, the employee and employer must have regard to each other’s interests, whereas employees are not required to subjugate their own interests, as is required of a director. Bottom line: you’re not a fiduciary and they can’t collect damages, and although you can be fired for a lot of reasons, most HR departments will overrule firing a PM simply because some senior person is pissed off.
The situation in Canada is similar to the UK, in that there is no employment at will and employment agreements prevail. While courts have found both employers and employee in violation of agency fiduciary obligations, in practice this has mostly been limited to self-dealing, soliciting former clients, and misusing proprietary information. While you can be terminated for misconduct, termination without cause generally requires notice and severance pay. So while you might be fired for pissing off some senior person, you’ll get a lovely parting gift. Australia and New Zealand are a bit more complex in terms of terminations, agency fiduciary obligations, and possible recovery of damages, but are generally similar to Canada, even though your parting gift will likely be capped.
In most non-English speaking jurisdictions, contracts are mandatory and employment is generally based on paternalistic principles. It would be shocking for someone to be fired for pissing off some senior person in the course of doing their job—no court would look kindly on the “because he pissed me off, that’s why” defense.
In closing: while you might be summarily fired in The Land of Trump, as you get further away, the risk diminishes considerably.