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Employees can’t choose which policies to follow

Alberta teacher fired for giving students zeros on tests and assignments not completed

By Stuart Rudner

Recently, there has been a lot of publicity and controversy surrounding Lynden Dorval, a teacher in Alberta who has given students zeros on assignments they failed to hand in and tests they failed to write, contrary to the policy of the school board.

The situation generated a lot of public debate regarding the appropriateness of the policy and, by extension, the appropriateness of suspending and ultimately dismissing Dorval, who quickly found work at a private school. The story provides an interesting context within which to discuss the concept of insubordination.

Insubordination versus insolence

Insubordination and insolence are two forms of misconduct that are often confused.

Insubordination refers to the refusal of an employee to follow a lawful and reasonable direction from his employer.  Insolence refers to disrespectful conduct on the part of an employee toward his employer.

While they may go hand in hand — a worker who refuses to follow directions while acting in a rude or disrespectful manner — it is quite possible to have insubordination without insolence and insolence without insubordination. 

As the definition of insubordination set out above indicates, it is not every refusal to follow an order that will constitute insubordination. The order, or direction, must be lawful and reasonable. Directing the CFO to sweep up the floors at the end of the day will not be considered reasonable, unless the evidence shows it was part of her duties. And refusing to follow an instruction to engage in fraudulent activity will not constitute insubordination.

I recently heard a discussion on a Toronto talk radio station Dorval participated in. Generally speaking, the public sentiment was against the policy of the school board. Many callers supported Dorval and were critical of the decision to discipline him. I confess, I was initially sympathetic to his situation as well.

However, one caller made an excellent point that reminded everyone, myself included, of the law as it would, or should, apply to the situation. The teacher, an employee of the school board, had clearly and explicitly refused to follow a direction from his employer. While it was clear he did so because he did not agree with the policy, that does not change the fact he refused to comply with a policy that was both lawful and reasonable (though some may dispute the latter). As a result, said the caller, he should be disciplined.

As other cases have set out in the past, it is not for employees to second guess the decisions of their employers or substitute their own views for those of their superiors. Of course, an employee is entitled to refuse to follow a direction that would be unlawful or completely unreasonable within the context of their position. Otherwise, however, an employer is entitled to expect employees to follow the directions.  If they fail to do so, the employer is entitled to discipline them as a result. 

I confess that my sympathy with the teacher’s views may have briefly clouded my judgment with respect to the appropriateness of discipline in that case. The caller helped to remind me, and perhaps others, that while we may have disagreed with the school board’s policy, this employee did not have the right to choose not to follow it.

By proceeding in that manner, he exposed himself to disciplinary action.

Stuart Rudner is a leading HR Lawyer and a partner in the Labour & Employment Law Group of Miller Thomson LLP, a national law firm. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at 416.595.8672 or srudner@millerthomson.com. You can also follow him on Twitter @CanadianHRLaw and join his Canadian HR Law Group on LinkedIn.

Stuart Rudner

Stuart Rudner, Employment Lawyer and MediatorStuart Rudner is the founder of Rudner Law (RudnerLaw.ca), a firm specializing in Employment Law and Mediation. He can be reached at stuart@rudnerlaw.ca, (416) 864-8500 or (905) 209-6999, and you can follow on Twitter @RudnerLaw.
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  • Employees can’t choose which policies to follow
    Tuesday, September 25, 2012 4:49:00 PM by Stuart Rudner
    Sydney, thanks for your thoughtful comments. I agree that the bigger issue is the appropriateness of the policy. However, I heard a lot of discussion in which people took the position that he should not have been fired because the policy was "dumb". As a result, I thought it would be a good opportunity to remind people of how the law should apply.