Sometimes conflict happens in the workplace. Disagreements are commonplace and interpersonal differences between individuals can result in quarrels. However, employee insubordination is not simply an employee engaging in this sort of normal or routine conflict which is usually easily rectified.

This blog seeks to layout the foundation of what insubordination is in employment law and why it can be a ground for dismissing an employee for cause.

What is insubordination?

Simply put, insubordination occurs when an employee understands what the employer expects of them as an employee and what the employee is supposed to do in relation to their job but the employee refuses to fulfill those expectations. The employer’s instructions and expectations must be reasonable and clearly understood, and the employee must purposefully and with intention refuse to act in accordance with those instructions and expectations.

It would not be insubordination if the employer’s instructions or directions were unsafe, outside of the scope of the employee’s job description or made in a discriminatory manner.

Insubordination may be a justification for terminating the employee with cause. To remind our readers, termination for cause is found where acts by the employee have gone to the root of the employment agreement, and it will become impossible for the employment relationship to continue. Other examples of reasons an employer would terminate an employee for cause could be willful neglect of duty, serious workplace misconduct such as violence or harassment or gross dishonesty such as fraud or theft. When an employee is fired for cause, the employee is not entitled to any notice of dismissal nor a termination or severance package. However, when an employee is fired for cause, they have the option to sue the employer for wrongful dismissal.

What are some examples of insubordination?

Here are some examples of insubordination in the employment law context:

• refusing to participate in meetings;
• refusing to complete assignments;
• refusing to follow directions;
• refusing to follow safety precautions or procedures;
• refusing to follow workplace policies;
• acting in a defiant manner which can including shouting, yelling, name-calling or using vulgar language; and
• using a disrespectful or mocking tone to others in the workplace.

Some of the above forms of misconduct may also fall under the cause of insolence, harassment and discriminatory behaviour.

How should an employer approach an employee who has been acting in an insubordinate manner?

An employer should take a careful approach when they believe an employee may be acting in an insubordinate manner. Employers should be aware that in most cases, a single event will not meet the threshold for insubordination in employment law, and they should refrain from terminating the employee for cause for a single event of insubordination. This is especially true if the employee has been working for the employer for long time and has had no or very little history of insubordination in the past. The best course of action for an employer to take to minimize their litigation risk would be to engage in progressive discipline prior to termination. For instance, the employer may choose to give the employee a warning instead of dismissing them summarily. Then if the behaviour continues and assuming all legal requirements are met the employer may choose to suspend the employee and investigate the incidents. Thereafter, if the employee refuses to cease the insubordinate conduct, the employer may decide ultimately that the only other option would be to terminate the employee.

Specifically, an employer should ensure that they take the steps to document instances of insubordination and progressive discipline including warnings and suspensions. This means that the employer should record how instructions were given, what was the result of those instructions and how the employee responded. Among other things, an employee’s honest display of remorse will mitigate the employee’s behaviour, especially if does not repeat itself.

Finally, we strongly recommend that the employer use the assistance of an employment lawyer. An employment lawyer can guide the employer and provide advice on what the best course of action should be to minimize litigation risk such as a claim for wrongful dismissal by the employee. Remember: not every instance of insubordination leads to a strong case for terminating the employee for cause. Another point that employers should be aware of is the fact that employment law in Ontario contemplates two standards for dismissal with cause: statutory and common law with the former standard as more forgiving than the latter.

What should an employee do if they have been accused of insubordination by their employer?

The employee should seek the assistance of an employment lawyer if their employer has made accusations of insubordination particularly if the employee has been subjected to discipline such as a receiving a warning or suspension related to insubordination. An employment lawyer can advise the employee how best to approach the situation to best protect their rights.

Secondly, the employee should also ensure that they take steps to document these instances. This means that the employee should record how instructions were given and what the results of those instructions were and whether those instructions on the part of the employer were clear and reasonable. Make sure to note down if there were any good explanations for not following the employer’s instructions.

How can Zeilikman Law help?

Our employment lawyers at Zeilikman Law routinely help employees who have been accused of misconduct at work or who have been fired for cause. We review their case and set out how to best deal their own specific matter. In many instances, employers do not meet the threshold for termination for cause, and the employee will need make a claim for wrongful dismissal to protect their rights to compensation upon dismissal for termination and severance pay.

We also help employers determine their obligations to employees upon termination. Particularly, an employment lawyer can assist the employer in determining whether the insubordination on the part of the employee meets the threshold for termination for cause. The employment lawyer can also guide the employer in how best to approach a situation where the employee has engaged in insubordination in order to minimize the employer’s litigation risk.

Zeilikman Law can be contacted at (905) 417-2227 or online here to schedule your own confidential consultation with one of our employment lawyers.