Refusing an order may not be insubordination if the order is unreasonable
By Nadia Zaman and Stuart Rudner
Employees are expected to do their job. But what if their job involves piercing children’s ears, and the child is unwilling? Is the employee required to carry on and pierce the child’s ears against their wishes? Or can the employee refuse to do so?
Recently, CBC broke a story about Raylene Marks, an Edmonton woman who said she quit her job at Claire’s, an accessory retailer, given her concerns about whether employees can refuse to pierce a child’s ears. Marks was employed at this store for four months. At one point in her tenure, a mother and daughter came to the store to get the child’s ears pierced. She was seven years old.
Marks and her co-worker were assigned to perform the piercing together so that both of the child’s ears could be pierced at the same time. However, the child kept crying and was adamant about not wanting to get her ears pierced.
In a widely shared Facebook post, Marks detailed this incident:
“The girl pleaded and sobbed for 30 minutes not to be pierced... She begged, over and over again, for Mom to please, just take her home. That child's message was loud and clear to me: ‘Do not touch my body, do not pierce my ears, I do not want to be here.’ I'm inclined to respect a child's right to say, ‘No’ to any adult forcing any kind of non-medical contact on them, so I told the other piercer I wouldn't be part of the ear piercing for this girl. To my great relief, in the end the mother respected her daughter's wishes, and took her home.”
Marks said her manager spoke to her the next day about the incident. Marks said she told her manager she would not have been able to pierce that girl’s ears and was told she would have had no choice but to do it.
Marks resigned given her belief in bodily integrity -- she believes children have the right to protect their bodies from invasive, non-medical procedures.
In the Facebook post, Marks also emphasized a company policy that reserves the right to refuse piercing if it cannot be done successfully, although she said the policy fails to mention “the use of physical restraint by the parent, or the employee’s right to refuse an ear piercing if their concerns are for the emotional welfare of the child.”
Marks said she was subsequently contacted by a Claire’s representative who said the company plans to address its policy to ensure it clearly protects children who do not want to have their ears pierced.
Could the employee’s refusal constitute insubordination?
In assessing summary dismissal, courts will use a contextual analysis and consider not only the misconduct in question, but all relevant factors, including the employee’s length of employment, prior disciplinary history, and any mitigating factors.
The case law has made it clear that in order to justify summary dismissal for insubordination (the refusal to follow direction), an employer must show that the employee deliberately refused or defied clear and unequivocal instructions of a superior to carry out orders that were known and that were reasonable in the fulfillment or pursuit of the employer’s business.
Furthermore, the employer must demonstrate that the employment relationship has been irreparably harmed by the employee’s disobedience, along with any other misconduct.
In Roden v Toronto Humane Society, 2005 CanLII 33578 (ONCA), the employer dismissed two employees who persistently refused to implement its decision to take in stray animals, as they believed it was illegal. They were dismissed with two weeks’ termination pay and benefits, and sued for wrongful dismissal. The trial judge found the employees were dismissed for cause for serious and willful misconduct. The employees appealed.
The Ontario Court of Appeal held the judge’s findings were consistent with repudiation: The employees had refused to perform an essential condition of the employment contract, which entitled the employer to treat their contracts as terminated.
The court noted that if an employee’s refusal to carry out an order is reasonable, that may not constitute repudiation. However, the employees’ refusal to carry out their duties was found to be unreasonable since the employer had addressed their concerns about the order’s legality with multiple legal opinions stating it had the authority to take in stray animals.
Where there is a non-consenting child and the procedure is non-medical and invasive, it is questionable whether the employer’s order to carry out the piercing would be considered “reasonable.”
Although Claire’s policy at the time of the incident simply reserved the right to refuse a piercing if it could not be done successfully, it is arguable that if a child is non-consenting to the point of pleading and sobbing for 30 minutes that the piercing cannot be done successfully and that refusal to pierce the child would actually be in line with the policy itself.
Regardless, if Marks had not resigned and Claire’s had decided to discipline and summarily dismiss her based on its existing policy, Claire’s might have faced an uphill battle if Marks brought a wrongful dismissal claim. The situation may have been different if it had a clear policy, including a policy on disciplinary actions and outcomes.
Employers would be well-advised to implement clear policies that allow them to manage situations like these in the workplace. Those policies, and all workplace rules, must be defensible if challenged. Employers should ensure they apply and document disciplinary actions, for breach of any policies, in a consistent manner.
Nadia Zaman is an associate at Rudner Law in Toronto.