Insubordination is a serious workplace offence, but there are few – if any – slam dunks when it comes to getting rid of disobedient employees
“I triple dare you to fire me.” It’s a pretty irresistible invitation from an employee who’s being insubordinate and abusive to his supervisor. That’s what Gerald Henry, a body repair technician at Fox Ford in Woodstock, N.B., taunted his supervisor with in the fall of 2000.
Peter Graham directed Henry to remove decals from two vans at the dealership. Graham thought Henry was taking too long to get the job done, so he challenged him on it. According to Rick Atherton, the service manager, Henry responded by swearing and yelling. He heard Henry say, “What’s your fucking problem? You’ve been on my fucking case all day and I’m fucking sick of it.”
A heated argument ensued, and Henry repeatedly challenged Graham to fire him. Graham told Henry to go home and cool off, but Henry refused. So Graham fired him. The entire incident only took a few minutes to unfold. Henry subsequently sued for wrongful dismissal. Graham testified in court that he fired Henry because of “the way he was treating me. He was completely out of line.”
The trial judge upheld the termination, stating that Henry’s behaviour was “sufficiently serious” to justify his firing. She said Henry overreacted and became loud and abusive to Graham and the confrontation took place in front of at least three other employees who reported to Graham, undermining his authority.
Henry appealed the trial judge’s ruling, and the New Brunswick Court of Appeal overturned it. It said this one incident was simply not enough to justify his firing. It awarded Henry, who earned about $31,000 a year and had been with the dealership for seven years, $14,200.
When does poor behaviour cross the line?
Decisions like this often leave employers scratching their heads and wondering just what an employee has to do to get fired. What is clear is that employees have a duty to obey instructions from their employer, assuming the orders aren’t illegal and don’t put anyone’s safety at risk. Otherwise they’re guilty of insubordination.
But knowing when insubordination crosses the line and justifies dismissal is tricky.
“There aren’t any slam dunks in employment law anymore,” said Colin Gibson, a partner with employment law firm Harris & Company in Vancouver. “Even if you catch the employee flagrantly with his hands in the cookie jar, you always have to look at the surrounding circumstances.”
Employers have the right to determine how its business should be conducted. It’s not up to courts or employees to question any procedures as long as they’re legal, safe and not dishonest, said Gibson.
“It’s an essential implied term (of employment) that the employee must obey the orders that are given,” he said.
But when an employee refuses to obey, or becomes belligerent, how can employers know when the insubordination is serious enough to justify dismissal? One of the key considerations is whether or not it strikes at the heart of the employment relationship and damages it so severely that it’s not possible for the employee and the employer to work together.
No black-and-white rules
Since the Supreme Court of Canada’s 2001 ruling in McKinley v. BC Tel, courts and arbitrators have been using a contextual approach to gauge how serious the insubordination is and whether or not the punishment fits the crime.
“You can’t apply black-and-white rules that disobeying an order will always be cause for dismissal,” said Gibson. “In all likelihood a single minor incident is almost certainly not going to justify dismissal for cause, but a serious and flagrant example of insubordination may well.”
Was the disobedience deliberate? Was the order clearly communicated? Has the employer consistently enforced the orders or rule the employee is ignoring?
“There’s lot of room for discussion, which is a bad answer for HR but a great answer for employment lawyers,” said Chris Foulon, a partner with law firm Israel Foulon LLP in Toronto.
An employee’s length of service and his work history is a critical factor in making the determination of whether or not the insubordination has crossed the line. An employee who gets into a shouting match with his employer, using profanity in the presence of co-workers or customers, has likely crossed the line, said Foulon.
That’s because the worker’s actions would have damaged the employer’s credibility with staff — who might think they can get away with anything — and with customers because the business doesn’t look professional.
“Those are the kinds of single incidents that you’ll sometimes see justifying dismissal,” said Foulon. “But even in those extreme circumstances, it likely wouldn’t be cause to fire a senior long-term employee with a clean disciplinary record.”
What employers can do
There are a few things employers can do to put themselves in a better position to deal with insubordination.
“If you have a good progressive discipline policy in place it really isn’t all that much work when there is an incident to write someone up,” said Foulon. “That’s all it has to be — a written warning. And once you have a few of those, you have a more solid case for dismissal for cause. If the warnings are done appropriately and they clearly set out the next change, employees that can be rehabbed will be and you won’t get to that last step.”
Positive work environment policies, such as anti-discrimination and anti-harassment, can also go a long way in reducing the chances for insubordination and insolent behaviour.
“Anything that encourages civility, decency and respect will help,” said Foulon. “Put that policy in place, communicate it and enforce it.”
Without consistent enforcement, workplace policies can be rendered meaningless. If the company has a policy that requires all visitors to be signed in when they arrive, but never enforces the policy, then it will have a tough time disciplining an employee who disobeys the rule, said Foulon.
Avoid the knee-jerk reaction
One of the most common problems employers run into is a knee-jerk reaction by the supervisor in terminating the insubordinate worker on the spot when things heat up.
“The supervisor isn’t going to call HR. The supervisor’s natural reaction is to say, ‘Get the hell out of here. You’re fired,’” said Foulon. That could be a major mistake that exposes the employer to significant liability for wrongful dismissal.
Therefore HR should drive home the message to supervisors and managers that the best way to deal with an insubordinate employee is to send them home immediately but still pay them for the day, said Foulon.
Then the supervisor can get together with HR and other members of management to discuss the situation, let things cool off and let calmer heads prevail. But it’s critical to pay the employee for that day, lest the employer open the door to a constructive dismissal claim.
“I think it’s hard to say that sending someone home with pay is a complete breakdown of the employment relationship,” said Foulon.
Plus, there’s no downside to paying them. Even if the incident is serious enough to justify dismissal, that action can be taken the following day once all the facts have been considered.
Gibson said employers also need to step back and look carefully at the employee’s record.
“They shouldn’t focus only on the particular incident without considering the surrounding circumstances and the potential mitigating factors and the employee’s work record,” he said.
Worst-case scenario
Employers that haven’t laid the proper groundwork can still get rid of an insubordinate worker. The catch is the cost. The employer can terminate the worker without cause, providing pay in lieu of reasonable notice.
“Employers will sometimes terminate for cause with the knowledge and understanding that if the employee pushes back, they may have to put some money on the table in terms of a notice package,” said Foulon. “The employer believes it has cause, but knows it may not be able to prove it.”
Categories of misconduct
Insolence versus insubordination
The terms insubordination and insolence may seem interchangeable, but there’s a significant legal difference between the two. Insubordination is an intentional refusal to obey an employer’s lawful and reasonable orders. Insolence is an employee’s derisive, contemptuous or abusive language, generally directed at a superior.
In its 2004 decision in Henry v. Foxco Ltd., the New Brunswick Court of Appeal pointed out the difference between insolence and insubordination.
“In short, insubordination and disobedience are equivalents; insubordination and insolence are not,” said Justice Robertson. “In my view, the law should not weld together distinct categories of misconduct.”
Justice Robertson pointed out that there are four traditional categories of misconduct:
•dishonesty;
•disobedience (insubordination);
•incompetence; and
•insolence.
“When looking at the diverse categories of misconduct, some are inherently or intuitively more serious than others,” said Justice Robertson. “The weakest of all is insolence and more so if characterized as an isolated incident. By comparison, insubordination is inherently more serious than insolence. Admittedly, a single incident of either may be sufficient to justify an employee’s summary dismissal. However, the starting point is the understanding that there are distinct categories of misconduct and that some are inherently more serious than others.”
Colin Gibson, a partner with employment law firm Harris & Company in Vancouver, echoed Justice Robertson’s comments.
“Both courts and arbitrators view insubordination in the serious category of misconduct, kind of like dishonesty,” he said. “It’s not like inadequate work performance, where the employer would have to jump through hoops to justify dismissal. It’s at the other end of the spectrum. It’s serious misconduct and it’s going to merit some serious penalty.”
Drawing the line
Three cases of insubordination
Justice John Sproat of the Ontario Superior Court of Justice takes an in-depth look at the concept of insubordination in his book, Employment Law Manual: Wrongful Dismissal, Human Rights and Employment Standards, published by Carswell.
Here are three cases involving insubordination and how the courts dealt with them.
Philosophical and ethical differences
In Bell v. Society for the Promotion of Education & Activities for Children in the Home, a 1984 Saskatchewan Court of Appeal decision, the employee was the executive-director of a society providing in-home services to people with intellectual or developmental disabilities in Saskatchewan. He learned that the parents of a severely disabled 12-year-old had made arrangements for her to have a partial hysterectomy for hygienic reasons. The employee, who was opposed to such surgery on ethical and philosophical grounds, raised objections. He was told by the president of the society that he should do nothing further until the board of directors could consider the matter.
But he went ahead and took steps to prevent the surgery anyway. As a result, the doctor who was to perform the surgery backed out over concern he could be subject to some sort of discipline. When the executive-director was fired, he sued for wrongful dismissal.
The Court of Appeal upheld the firing, stating that the worker had simply gone too far with his ethical and moral objections.
“He had made up his mind to frustrate the desires of the family,” the court said. “He was determined to bypass the board and its potential interference…it was not his duty to pursue the matter with the zeal which he followed.”
Health and safety objection
In Cole v. Carey Limousine Canada, a 2000 decision by the Ontario Labour Relations Board, the worker refused an order to help push a stalled vehicle. As a result, he was fired from his job as a limousine driver. The employee argued he had a bad back and that his refusal to push the vehicle was protected by the Occupational Health and Safety Act, which permits an employee to refuse unsafe work and prohibits the employer from imposing any penalty as a result of the refusal. The labour board agreed and ordered the employee to be reinstated.
Disregarding proper procedures
Another aspect of insubordination is the failure to follow established corporate procedures. In Bell v. Cessna Aircraft Co., a 1980 case out of British Columbia, the worker decided his sales quota had been raised to an unreasonably high level. He went over his supervisor’s head, and complained to the head office in the United States about what he thought was unfair treatment. One of his Canadian supervisors felt this conduct demonstrated that the worker would not be amenable to any criticism, constructive or not, and that the example of a worker going over management’s heads to rectify perceived wrongs would be a “disastrous” precedent. As a result, the worker was fired.
The B.C. Supreme Court upheld the firing on the ground that the worker “struck at the root of his own contract of employment” by challenging the internal reporting structure of his employer. But on appeal, the B.C. Court of Appeal took a more charitable view of the worker’s conduct.
“While it may be wrong to go over the head of one’s immediate supervisors for the purpose of criticizing business or administrative decisions made by middle management and thus afford grounds for immediate dismissal, different considerations may apply where an employee’s job is at stake,” the Court of Appeal said. “In my view, simple justice requires that where a junior executive on reasonable grounds and acting in good faith believes that he is about to be discharged, he should have the opportunity to present his side of the case to top management.…While it may be that the employee’s conduct…will cause his immediate supervisors to lose confidence in him and make his continued employment impossible, such conduct does not constitute cause for dismissal.”
Peter Graham directed Henry to remove decals from two vans at the dealership. Graham thought Henry was taking too long to get the job done, so he challenged him on it. According to Rick Atherton, the service manager, Henry responded by swearing and yelling. He heard Henry say, “What’s your fucking problem? You’ve been on my fucking case all day and I’m fucking sick of it.”
A heated argument ensued, and Henry repeatedly challenged Graham to fire him. Graham told Henry to go home and cool off, but Henry refused. So Graham fired him. The entire incident only took a few minutes to unfold. Henry subsequently sued for wrongful dismissal. Graham testified in court that he fired Henry because of “the way he was treating me. He was completely out of line.”
The trial judge upheld the termination, stating that Henry’s behaviour was “sufficiently serious” to justify his firing. She said Henry overreacted and became loud and abusive to Graham and the confrontation took place in front of at least three other employees who reported to Graham, undermining his authority.
Henry appealed the trial judge’s ruling, and the New Brunswick Court of Appeal overturned it. It said this one incident was simply not enough to justify his firing. It awarded Henry, who earned about $31,000 a year and had been with the dealership for seven years, $14,200.
When does poor behaviour cross the line?
Decisions like this often leave employers scratching their heads and wondering just what an employee has to do to get fired. What is clear is that employees have a duty to obey instructions from their employer, assuming the orders aren’t illegal and don’t put anyone’s safety at risk. Otherwise they’re guilty of insubordination.
But knowing when insubordination crosses the line and justifies dismissal is tricky.
“There aren’t any slam dunks in employment law anymore,” said Colin Gibson, a partner with employment law firm Harris & Company in Vancouver. “Even if you catch the employee flagrantly with his hands in the cookie jar, you always have to look at the surrounding circumstances.”
Employers have the right to determine how its business should be conducted. It’s not up to courts or employees to question any procedures as long as they’re legal, safe and not dishonest, said Gibson.
“It’s an essential implied term (of employment) that the employee must obey the orders that are given,” he said.
But when an employee refuses to obey, or becomes belligerent, how can employers know when the insubordination is serious enough to justify dismissal? One of the key considerations is whether or not it strikes at the heart of the employment relationship and damages it so severely that it’s not possible for the employee and the employer to work together.
No black-and-white rules
Since the Supreme Court of Canada’s 2001 ruling in McKinley v. BC Tel, courts and arbitrators have been using a contextual approach to gauge how serious the insubordination is and whether or not the punishment fits the crime.
“You can’t apply black-and-white rules that disobeying an order will always be cause for dismissal,” said Gibson. “In all likelihood a single minor incident is almost certainly not going to justify dismissal for cause, but a serious and flagrant example of insubordination may well.”
Was the disobedience deliberate? Was the order clearly communicated? Has the employer consistently enforced the orders or rule the employee is ignoring?
“There’s lot of room for discussion, which is a bad answer for HR but a great answer for employment lawyers,” said Chris Foulon, a partner with law firm Israel Foulon LLP in Toronto.
An employee’s length of service and his work history is a critical factor in making the determination of whether or not the insubordination has crossed the line. An employee who gets into a shouting match with his employer, using profanity in the presence of co-workers or customers, has likely crossed the line, said Foulon.
That’s because the worker’s actions would have damaged the employer’s credibility with staff — who might think they can get away with anything — and with customers because the business doesn’t look professional.
“Those are the kinds of single incidents that you’ll sometimes see justifying dismissal,” said Foulon. “But even in those extreme circumstances, it likely wouldn’t be cause to fire a senior long-term employee with a clean disciplinary record.”
What employers can do
There are a few things employers can do to put themselves in a better position to deal with insubordination.
“If you have a good progressive discipline policy in place it really isn’t all that much work when there is an incident to write someone up,” said Foulon. “That’s all it has to be — a written warning. And once you have a few of those, you have a more solid case for dismissal for cause. If the warnings are done appropriately and they clearly set out the next change, employees that can be rehabbed will be and you won’t get to that last step.”
Positive work environment policies, such as anti-discrimination and anti-harassment, can also go a long way in reducing the chances for insubordination and insolent behaviour.
“Anything that encourages civility, decency and respect will help,” said Foulon. “Put that policy in place, communicate it and enforce it.”
Without consistent enforcement, workplace policies can be rendered meaningless. If the company has a policy that requires all visitors to be signed in when they arrive, but never enforces the policy, then it will have a tough time disciplining an employee who disobeys the rule, said Foulon.
Avoid the knee-jerk reaction
One of the most common problems employers run into is a knee-jerk reaction by the supervisor in terminating the insubordinate worker on the spot when things heat up.
“The supervisor isn’t going to call HR. The supervisor’s natural reaction is to say, ‘Get the hell out of here. You’re fired,’” said Foulon. That could be a major mistake that exposes the employer to significant liability for wrongful dismissal.
Therefore HR should drive home the message to supervisors and managers that the best way to deal with an insubordinate employee is to send them home immediately but still pay them for the day, said Foulon.
Then the supervisor can get together with HR and other members of management to discuss the situation, let things cool off and let calmer heads prevail. But it’s critical to pay the employee for that day, lest the employer open the door to a constructive dismissal claim.
“I think it’s hard to say that sending someone home with pay is a complete breakdown of the employment relationship,” said Foulon.
Plus, there’s no downside to paying them. Even if the incident is serious enough to justify dismissal, that action can be taken the following day once all the facts have been considered.
Gibson said employers also need to step back and look carefully at the employee’s record.
“They shouldn’t focus only on the particular incident without considering the surrounding circumstances and the potential mitigating factors and the employee’s work record,” he said.
Worst-case scenario
Employers that haven’t laid the proper groundwork can still get rid of an insubordinate worker. The catch is the cost. The employer can terminate the worker without cause, providing pay in lieu of reasonable notice.
“Employers will sometimes terminate for cause with the knowledge and understanding that if the employee pushes back, they may have to put some money on the table in terms of a notice package,” said Foulon. “The employer believes it has cause, but knows it may not be able to prove it.”
Categories of misconduct
Insolence versus insubordination
The terms insubordination and insolence may seem interchangeable, but there’s a significant legal difference between the two. Insubordination is an intentional refusal to obey an employer’s lawful and reasonable orders. Insolence is an employee’s derisive, contemptuous or abusive language, generally directed at a superior.
In its 2004 decision in Henry v. Foxco Ltd., the New Brunswick Court of Appeal pointed out the difference between insolence and insubordination.
“In short, insubordination and disobedience are equivalents; insubordination and insolence are not,” said Justice Robertson. “In my view, the law should not weld together distinct categories of misconduct.”
Justice Robertson pointed out that there are four traditional categories of misconduct:
•dishonesty;
•disobedience (insubordination);
•incompetence; and
•insolence.
“When looking at the diverse categories of misconduct, some are inherently or intuitively more serious than others,” said Justice Robertson. “The weakest of all is insolence and more so if characterized as an isolated incident. By comparison, insubordination is inherently more serious than insolence. Admittedly, a single incident of either may be sufficient to justify an employee’s summary dismissal. However, the starting point is the understanding that there are distinct categories of misconduct and that some are inherently more serious than others.”
Colin Gibson, a partner with employment law firm Harris & Company in Vancouver, echoed Justice Robertson’s comments.
“Both courts and arbitrators view insubordination in the serious category of misconduct, kind of like dishonesty,” he said. “It’s not like inadequate work performance, where the employer would have to jump through hoops to justify dismissal. It’s at the other end of the spectrum. It’s serious misconduct and it’s going to merit some serious penalty.”
Drawing the line
Three cases of insubordination
Justice John Sproat of the Ontario Superior Court of Justice takes an in-depth look at the concept of insubordination in his book, Employment Law Manual: Wrongful Dismissal, Human Rights and Employment Standards, published by Carswell.
Here are three cases involving insubordination and how the courts dealt with them.
Philosophical and ethical differences
In Bell v. Society for the Promotion of Education & Activities for Children in the Home, a 1984 Saskatchewan Court of Appeal decision, the employee was the executive-director of a society providing in-home services to people with intellectual or developmental disabilities in Saskatchewan. He learned that the parents of a severely disabled 12-year-old had made arrangements for her to have a partial hysterectomy for hygienic reasons. The employee, who was opposed to such surgery on ethical and philosophical grounds, raised objections. He was told by the president of the society that he should do nothing further until the board of directors could consider the matter.
But he went ahead and took steps to prevent the surgery anyway. As a result, the doctor who was to perform the surgery backed out over concern he could be subject to some sort of discipline. When the executive-director was fired, he sued for wrongful dismissal.
The Court of Appeal upheld the firing, stating that the worker had simply gone too far with his ethical and moral objections.
“He had made up his mind to frustrate the desires of the family,” the court said. “He was determined to bypass the board and its potential interference…it was not his duty to pursue the matter with the zeal which he followed.”
Health and safety objection
In Cole v. Carey Limousine Canada, a 2000 decision by the Ontario Labour Relations Board, the worker refused an order to help push a stalled vehicle. As a result, he was fired from his job as a limousine driver. The employee argued he had a bad back and that his refusal to push the vehicle was protected by the Occupational Health and Safety Act, which permits an employee to refuse unsafe work and prohibits the employer from imposing any penalty as a result of the refusal. The labour board agreed and ordered the employee to be reinstated.
Disregarding proper procedures
Another aspect of insubordination is the failure to follow established corporate procedures. In Bell v. Cessna Aircraft Co., a 1980 case out of British Columbia, the worker decided his sales quota had been raised to an unreasonably high level. He went over his supervisor’s head, and complained to the head office in the United States about what he thought was unfair treatment. One of his Canadian supervisors felt this conduct demonstrated that the worker would not be amenable to any criticism, constructive or not, and that the example of a worker going over management’s heads to rectify perceived wrongs would be a “disastrous” precedent. As a result, the worker was fired.
The B.C. Supreme Court upheld the firing on the ground that the worker “struck at the root of his own contract of employment” by challenging the internal reporting structure of his employer. But on appeal, the B.C. Court of Appeal took a more charitable view of the worker’s conduct.
“While it may be wrong to go over the head of one’s immediate supervisors for the purpose of criticizing business or administrative decisions made by middle management and thus afford grounds for immediate dismissal, different considerations may apply where an employee’s job is at stake,” the Court of Appeal said. “In my view, simple justice requires that where a junior executive on reasonable grounds and acting in good faith believes that he is about to be discharged, he should have the opportunity to present his side of the case to top management.…While it may be that the employee’s conduct…will cause his immediate supervisors to lose confidence in him and make his continued employment impossible, such conduct does not constitute cause for dismissal.”
