An employer’s right to train (On law)

Developing employee skills through training is important, but what happens if an employee refuses?

Generally, employers have the right to manage and reorganize the workplace as they see fit, subject to the terms of any applicable collective agreement. This includes the right to change business processes and introduce new technology or new systems of operation.

If an employer orders an employee to train on a new system, and the order is lawful and reasonable, the employer has a right to expect the order will be obeyed. An employee’s refusal to obey a reasonable order would constitute insubordination. However, it is important to note the directive to train must be unambiguous. Condoning the refusal to train, such as allowing an employee to work despite the refusal, could eliminate any consideration of insubordination.

An unreasonable training order would include one that endangers the health and safety of an employee or that is not within the reasonable scope of an employee’s work. If an employee argues he has sufficient work already and training on something new is not needed, it is important the employer ensure the training is, in fact, necessary. As well, an employee should be paid for training and not be penalized for the inability to complete existing assignments while undergoing training. To reduce the risk of a constructive dismissal claim, an employer should also avoid saddling an employee with an unreasonable amount of extra work as a result of introducing a new system.

Employers are also permitted to introduce training even if it is not part of an employee’s existing job description or part of an employment agreement. In Klassen v. C.A. Bailey Ltd., an arbitrator found a unionized driver abandoned his position when he refused to take first aid and CPR training.

The employee refused on the grounds this training had not been a condition of his employment when he was hired. The arbitrator found the employer had communicated the requirement numerous times and also gave the employee many opportunities to meet the reasonable requirement. The employee was also advised that in order to drive he had to take the training, but he refused to do so. The refusal to train constituted an abandonment of his position.

Discipline must fit ‘crime’

When an employee refuses a lawful and reasonable order to train, discipline may be warranted. The discipline imposed for an act of insubordination, like all other types of misconduct, must be just and reasonable. In most circumstances, this will include some type of disciplinary measure short of summary dismissal. Progressive discipline for an employee who continues to refuse training could include warning letters, suspensions and dismissal.

Rarely will a single act of insubordination constitute just cause for dismissal. A single act may be sufficient, but various factors should be considered, including:

• the magnitude of insubordination (the impact or potential impact on the employer)

• whether the employee’s conduct was wilful and deliberate

• whether the employer’s direction was clear and unequivocal

• whether the direction was lawful and reasonable, including within a reasonable scope of the employee’s work or job description

• whether the employee was aware of the consequences (discipline) of refusal to follow a directive.

The courts will also take into account the entire employment history of an individual in determining whether dismissal is appropriate. In Mazur v. International Paper Canada Inc., which involved a non-unionized workplace, an employee was dismissed after declining to attend a two-day, out-of-town computer system training course, because of family commitments. Although the employee was advised her attendance was imperative, the court held dismissal was not warranted given her unblemished work record — 17 years of service and good reputation. The court also noted the employee could have been accommodated with training at another time.

Conversely, in Lucerne Foods Ltd. v. I.U.O.E., Local 955, the refusal to train was grounds for dismissal when a unionized employee did not obey an order to attend a training meeting. The arbitrator found dismissal was the appropriate penalty given the employee’s prior record of two suspensions, even though the suspensions were unrelated to training.

Although employers generally have a right to order training, unionized and non-unionized employers alike must ensure any order is lawful and reasonable. Employers must act reasonably when employees resist or refuse training. If an employee has a reasonable explanation to refuse training, an employer may be required to accommodate. Moreover, if an employee has a disability that would limit training or his use of a new system, an employer is required to accommodate to the point of undue hardship.

For more information see:

Klassen v. C.A. Bailey Ltd. (c.o.b. Southway Charter Service), [2008] C.L.A.D. No. 3.

Mazur v. International Paper Canada Inc., 1998 CarswellAlta 1146 (Alta. Q.B.).

Lucerne Foods Ltd. v. I.U.O.E., Local 955 (March 25, 2004), Doc. Alta. G.A.A. 2001-025 (Alta. Arb. Bd.).

Genny Na is a lawyer at the Toronto office of Borden Ladner Gervais. She practices labour and employment law and human rights law. She can be reached at (416) 367-6032 or [email protected].

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