By Jeffrey R. Smith
Sticking it to the boss is something many workers would probably like to do at some point — it’s a product of the nature of the employment relationship.
When someone is in charge and has to dictate what others do, it’s pretty much inevitable at some point that those who are being told what to do won’t like it. For those more fortunate where the workplace is generally a positive environment, it likely won’t happen often. But for others, sometimes they just feel like saying, “Take this job and shove it.”
But if they do, can the employer take them at their word and send them packing?
Insubordination is usually considered serious misconduct by employees, as it strikes at the heart of the employment relationship. If an employee is disrespectful to or ignores the orders of a superior, it undermines the ability of the superior to ensure things get done and ultimately the employer’s business. That’s why insubordination can serve as just cause for dismissal — if it’s serious enough. But what kind of insubordination should be enough to send the employee out the door? Verbal insults? Profanity? Refusal to follow orders? Should it matter whether it happens behind closed doors or in front of other employees?
Recently, an Ontario Labour Board arbitrator found that “repeated, unjustified, profane verbal abuse” of a manager by an employee warranted a two-week suspension but not dismissal. The employee — who had requested a medical leave following a year-long parental leave when his wife remained ill — received a call at home from a manager asking for more information for the leave request. The employee was under the impression the request had been handled by another manager and became perturbed, called the manager some profane names — including “fuckface” and asshole” — and told the manager to “stick your job up your ass.”
The employee also told the manager he was going to “come and get you.”
The employee was immediately dismissed for making threats and profane insults to the manager. However, the arbitrator found the employee was under stress because of his wife’s illness and the unexpected call. Therefore, the threat shouldn’t have been taken seriously — and that seemed to be the case as the manager didn’t call the police. Though the language and insults used by the worker were unacceptable and insubordinate, the arbitrator found they were the product of anger and were not premeditated. The arbitrator ordered the employee reinstated with the unpaid suspension, though the employee wasn’t entitled to back pay for the several months since his dismissal: Hydro One Inc. v. CUSW, 2014 CarswellOnt 4234 (Ont. Lab. Rel. Bd.).
It seems if an employee makes shocking comments and insults towards a manager, an employer must still consider mitigating factors before deciding whether there is cause for dismissal or not. In the above case, the employee’s comments were pretty disrespectful and he didn’t seem to hold back, but it still wasn’t cause for dismissal. Though, in such circumstances, it would be interesting to see what kind of effect the incident might have on the working environment and the working relationship once the employee returned to work. Let bygones be bygones, or might there be an escalation ultimately leading to the termination of the employment relationship anyway?
It could be a situation leading to headaches for the employer’s HR department. But it seems that when in doubt, it’s often safest to give someone a second chance.