Labor & Employment Law

The Law of Insubordination

By Michael Fitzgibbon

Conduct amounting to insubordination sufficient to establish cause for dismissal was described half a century ago by Lord Evershed in Laws v. London Chronicle:

Since a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows that, if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. It is, no doubt, therefore, generally true that wilful disobedience of an order will justify summary dismissal, since wilful disobedience of a lawful and reasonable order shows a disregard ? a complete disregard ? of a condition essential to the contract of service, namely, the condition that the servant must obey the proper orders of the master and that, unless he does so, the relationship is, so to speak, struck at fundamentally. [Emphasis added]

The law of just cause dismissals in a non-union setting has changed over the years with the Supreme Court of Canada setting out a "contextual approach" in McKinley v. BC Tel, but insubordination, when proven remains a disciplinable offence.  Whether termination is the right penalty will depend on the circumstances and the context.    

In some rare cases, a single act of insubordination can justify dismissal.  In Amos v. Alberta, the following factors were considered:

... it depends on a large mix of factors. It is not possible, from one fact alone, to conclude if insubordination in a particular situation can justify summary dismissal. Usually, one instance of insubordination will not be sufficient to summarily fire an employee. However, one incident of insubordination can be enough if:

• the insubordination is grave;
• it consists of wilful and deliberate disobedience of an order;
• work rules were made known to the employee;
• work rules were consistently enforced;
• work rules were clearly communicated to the employee;
• the work order was authorized, that is, that it came within the scope of the worker?s duties;
• the worker was made aware, unequivocally, that discipline is the penalty for disobedience;
• the work order was lawful and reasonable in content;
• the employee has no reasonable excuse for disobedience;
• the breach is serious.

In summary, the court must assess all relevant circumstances to determine if, in a particular case, insubordination justifies summary dismissal.

In a Union setting, a majority of a Board of Arbitration clearly and succinctly set out the law with respect to insubordination in Toronto Rehabilitation Institute:

When a clear direction is given to perform a task, a failure to comply with that direction may amount to insubordination.  Defenses to an allegation of insubordination may include health, safety or other legitimate grounds for refusal.  However, the general rule is that an employee must follow directions and then later grieve any perceived impropriety.

Insubordination undermines managements authority and ability to effectively lead the organization. Once proven, the turns to penalty.

Full post as published by Thoughts from a Management Lawyer on July 31, 2010 (boomark / email).