By definition, insubordination occurs when a person refuses to follow orders. In an employment law context, insubordination also tends to include unprofessional behaviour involving disrespect, insolence, or contempt by a subordinate to their superior.
The increasing use of e-mail and text messaging both in the workplace and between employers and employees has created an environment with even greater potential for instances of insubordination and/or perceived insubordination.
When an arbitrator, mediator or workplace investigator is consulted regarding an incident of insubordination they consider the legal framework that is in place to determine what, if any, consequences are appropriate.
Legal Principles Considered Regarding Insubordination
A. Duty to Obey
Workplace investigators, arbitrators, and mediators and courts have recognized that a duty to obey lawful orders related to the employee’s job function (ie. a requirement at work to follow the employer’s instructions) is fundamental element of the employment relationship. As stated by the British Columbia Court of Appeal in Stein v. British Columbia Housing Management Commission, 1992 CanLII 4032 (BC CA):
“(A)n employer has a right to determine how (their) business shall be conducted. (They) may lay down any procedures (they think) advisable so long as (the procedures) are neither contrary to law nor dishonest nor dangerous to the health of the employees and are within the ambit of the job for which any particular employee was hired. It is not for the employee nor for the court to consider the wisdom of the procedures. The employer is the boss and it is an essential implied term of every employment contract that, subject to the limitations I have expressed, the employee must obey the orders given to (them).”
As such, this duty is a term of all employment contracts (regardless of whether it is written in a formal contract or not).
Typically, insubordination is dealt with as a breach of the duty to obey which can warrant just cause for termination. As summarized by the court in Cotter v. Point Grey Golf and Country Club, 2016 BCSC 10 (CanLII) (“Cotter”), in order to warrant termination:
“(t)he behaviour of the employee must be such that viewed in all the circumstances it is seriously incompatible with the employee’s duties. It is behavior that goes to the base of the employment contract and ‘fundamentally strikes at the employment relationship’ […] [I]nsubordination will not constitute cause unless the employer establishes that the employee breached an ‘essential condition of the contract of service’. That may occur […] where the employee has wilfully defied a ‘clear and unequivocal’ instruction or refused ‘to carry out a policy or procedure well known by the employee to be central to the fulfillment of the employer’s objectives’.”
However, as with many legal principles, there are some exceptions to the general rule.
Before exploring these exceptions, it is relevant to recall that the general law regarding termination is different for unionized versus non-unionized employees. For unionized workers, arbitrators apply the test set out in William Scott & Co. v. C.F.A.W., Local P-162, 1976 CarswellBC 518,  1 Can. L.R.B.R. in order to determine whether dismissal is justified or whether a different outcome should occur (including reinstatement of the worker to their job with or without a lesser sanction, or other compensation). For non-unionized employees, the Supreme Court decision in McKinley v. BC Tel,  2 SCR 161, 2001 SCC 38 (CanLII) sets out the guiding principles in determining whether employee conduct/misconduct justifies dismissal.
***For a detailed review of the respective test and principles, please refer to the Discipline and Termination section under the Areas of Focus tab of this website.***
B. Exceptions: Is It Insubordination? Has It Happened Before?
As can be inferred from the Cotter excerpt above, in order for insubordination to justify dismissal, the disobeyed instruction must have been an obvious instruction to do something that is understood as an essential part of the job. Additionally, as is demonstrated by the following examples, insubordination usually must involve more than one incident, and each incident should be followed with discipline (such as a reprimand or warning).
Example Arbitration and Court Decisions
While usually there would need to be multiple instances of insubordination and accompanying discipline, there are circumstances when a single instance of insubordinate behaviour is so serious that it constitutes just cause for termination. Wise v. Broadway Properties Ltd., 2005 BCCA 546 (CanLII) involved a disagreement arising between a resident caretaker and the property management company that employed him. During the course of the disagreement, the caretaker forwarded correspondence to the owner of the company which contained anti-Semitic comments. The trial judge held that the comments “irretrievably destroyed any chance of a workable relationship” and therefore the insubordinate behaviour justified termination of the caretaker.
Again, in most situations there must be multiple instances of insubordination in order for a set of instances to justify termination, and it is important to note that each instance should result in disciplinary action. In Re: Naylor Publications Co. (Canada) and Media Union of Manitoba, Local 191, 2003 CarswellMan 1050, 73 C.L.A.S. 116 the arbitrator dealt with a grievance that resulted when an employee was terminated after having sent and saved emails which criticized management in offensive terms, made derogatory comments about coworkers, and ‘joked’ about going on a shooting rampage at work. However, in reinstating the employee the arbitrator stated:
“I would seriously consider upholding the Employer’s decision to discharge the grievor, except for one significant difficulty in this case. The Employer failed to include in the warning letter of September 2002 any reference to the grievor’s known misuse; of the e-mail system. If the principle of progressive discipline was applicable to the Employer’s handling of the harassment issue at that time, then it should have been equally applicable to the e-mail issue. […] As discussed earlier, the Employer chose not to raise the e-mail issue, which allows the grievor to argue in this arbitration for one last chance at corrective discipline.” (Emphasis added).
When there is a refusal to follow legal, job-related instructions that have been clearly given, insubordination has occurred. Typically, where insubordinate behaviour has occurred on more than one occasion, and where discipline has resulted on previous occasions, insubordination can be just cause for termination. In some cases, insubordination can be so serious that the employment relationship is completely destroyed and dismissal can justifiably result.
Insubordination often depends on case-by-case analysis and can result in arbitration, medication, and workplace investigation. As these issues require the type of in-depth legal knowledge and experience offered by Neil Hain, please contact us for help navigating situations involving insubordination, or potential insubordination, at your workplace.