Rudner Law Video Update: Insubordination and Dismissal
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Rudner Law Video Update: Insubordination and Dismissal

 

Stuart Rudner here with another Rudner Law video employment law update.

It’s a fundamental element of the employment relationship: employers direct the employees to carry out their orders and employees are expected to follow them. But if things were that simple, our firm would certainly not be as busy as we are. This vlog was inspired by a very simple question: can you be fired for refusing to do what your boss asks you to do? Is that insubordination? What is insubordination anyways? We often hear the word used but what does it mean? And when can it lead to the termination of your employment?

As regular readers or viewers will already know, there are two types of dismissal in Canada: there is without cause dismissal and with cause dismissal. The vast majority of dismissals in Canada are without cause, in which case the employee is entitled to notice, or pay in lieu, or severance as we often call it. I’ve spent a great deal of time and a great part of my career studying the other type of employment, dismissals with cause. I’ve even written a book on it, it’s called You’re Fired! Just Cause for Dismissal in Canada, which I update twice a year, which means that I review every single just cause decision that comes out year in and year out. If just cause for dismissal exists, the employee does not get any notice, any severance pay, or any other compensation.

That result is obviously quite harsh, which is why it is reserved for particularly egregious situations. There’s a lot of information about this on our website, on our blog, and of course in the book I mentioned, but i want to talk specifically today about insubordination. Can you be dismissed for saying no to your boss. First of all, I do want to thank Janet Webb, she’s the president of JW Associates International. She’s the one who sent me this question, with a couple of examples.

So first of all let’s be very clear: insubordination is misconduct but not all misconduct warrants dismissal. In many cases, what our courts will say is that some lesser form of discipline will be appropriate and dismissal in that case can expose the employer to liability where it’s not justified. So what is insubordination? Simply put it’s defiance, I’ll say willful defiance, of an instruction, order, or policy, that was clear and unequivocal, that was known to the employee, and that was lawful and reasonable.

A great example is a a Court of Appeal of Ontario decision from 2005 known as Roden v. Toronto Humane Society. In that case the employees in question refused to follow a new policy, a new change of direction if you will, that was brought in by the Humane Society because they were, as they put it, uncomfortable with the legality of the decision. The problem is that, as the Ontario Court of Appeal found, there was no reasonable basis for this position and in fact the Humane Society had several legal opinions, the matter had been discussed, their concerns had been raised, and had been addressed, so at that point they refused to carry out what were reasonable and lawful orders as a result and this matter went to the Court of Appeal. They lost and the Court of Appeal found that dismissal was justified because there was a willful refusal to follow clear, unequivocal, reasonable and lawful directions. That’s a prime example.

One of the examples that Janet Webb gave to me when she asked me this question was what about a situation where a CFO is asked to misrepresent the financials by the CEO? They’re not necessarily being asked to do something that is illegal but something that is pushing the boundaries, is that insubordination if they refuse? So it would be if the direction is lawful and reasonable. If the direction is not lawful or not reasonable, it would not be insubordination, so you really, and this is why we often say every case is fact specific, you would really have to ask what the individual is being directed to do and then assess if it truly is unlawful or if it’s unreasonable or if it’s just that they are uncomfortable with it, and if it is just that they’re uncomfortable, they of course can say no, but they may have to live with the consequences, which might be the end of their employment, and they would not have a claim to make in those cases.

One final note, we often hear the terms insolence and insubordination used interchangeably, so they are actually referring to two very different concepts. In short, as I’ve explained, insubordination refers to disobedience or a refusal to follow orders. By contrast, insolence refers to rude, contemptuous, or disrespectful behavior on the part of an employee to their superior, is deliberately and overtly disrespectful. Sometimes insolence and insubordination go hand in hand. A rude refusal to follow a direction. But they also can occur independently and they are not the same thing. Bottom line is that employees are expected to follow reasonable and lawful directions from their employer, if they do, or sorry if they don’t, then they can be disciplined, and if they repeatedly refuse to follow lawful, unreasonable directions, that can lead to summary dismissal. However, every expectation has limits. If the directions are not reasonable, if they’re not lawful, if they’re not clearly unequivocal, or if they’re not known to the employee, then the employee can’t be disciplined for failing to follow them.

At the end of the day, we often say this, before you make any decision it’s best to get proper advice about your specific situation from an employment lawyer. As the old saying goes, an ounce of prevention is worth a pound of cure. In this case what I often say is it’s going to be a lot less expensive to prevent a problem than it will be to fix it. So employers, before you fire someone, speak to an employment lawyer and employees, even if you’ve been fired, don’t assume that your employer had the right to fire you just because of one small transgression. Maybe you deserve to be disciplined but not dismissed. Before you do anything, before you make any decision, get proper legal advice. We welcome any inquiries, so feel free to reach out to us.

That’s all for today, thank you so much for tuning in. Take care, stay safe.

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