What is Insubordination?
Insubordination, or disobedience, occurs where an employee intentionally refuses to obey an employer’s lawful and reasonable order. That order must be within the scope of the employee’s job duties. Examples of insubordination might include:
- a) Refusing to comply with an employer’s reasonable order to return to work;
- b) Consistently failing to arrive to work on time;
- c) Consistently abandoning your shift without permission;
- d) Refusing to carry out a necessary order when instructed to do so; and
- e) Refusing to follow reasonable orders intended to address safety hazards.
When Will Insubordination Justify Dismissal Without Notice?
Insubordination may justify the summary dismissal of an employee (i.e., dismissal without notice) because insubordination constitutes a complete disregard of an essential condition of the employment contract: that the employee must obey the proper orders of the employer. This is fundamental to an employment relationship as, without this condition, no employer would be able to direct their workforce.
To justify summary dismissal, the employee’s insubordination must be willful. If the employee fails to obey an order because the order was not clear, or because the employee was reasonably confused as to what the employer expected, there may not be cause for summary dismissal. For this reason, an employer who fails to give their employee clear and unequivocal instructions should not terminate that employee if they fail to perform the task. This also applies where an employer merely gives their employee a “suggestion” rather than an order.
- (a) Single Incident of Insubordination
A single incident of insubordination will very rarely justify summary dismissal. This will only occur in exceptional circumstances.
Such an exceptional circumstance may be where the single incident of insubordination amounts to a repudiation of the contract of employment. It is important that the insubordination be related to some matter of substance. A minor incident would therefore be unlikely to justify summary dismissal. If the employer conducts itself such that it gives the impression that the order is inconsequential, the employer may not be able to dismiss employees for failing to comply. Whether the insubordination has irreparably damaged the employment relationship will also be a factor in determining whether the termination is justified.
Where a single incident of insubordination does not justify summary dismissal, an employer should instead impose progressive discipline such as verbal or written warnings.
- (b) Multiple Incidents of Insubordination
A single minor incident of insubordination will not justify summary dismissal. However, multiple minor incidents of insubordination might. For example, an employee who consistently fails to show up to work on time despite receiving several warnings may be summarily dismissed for insubordination. Several instances of insubordination, when viewed cumulatively, can therefore justify summary dismissal.
When Can an Employee Refuse an Order?
It is generally true that employees have an obligation to obey the orders of their employers. However, that is not always the case. In some scenarios an employee will be entitled to refuse an order and will not be found insubordinate.
For example, employees cannot be summarily dismissed for failing to obey orders that:
- a) They are not required to perform (e.g., an employee cannot be fired for refusing to work during a lawful labour strike);
- b) Are given by somebody without the proper authority to give orders;
- c) Are unlawful (e.g., an employee cannot be fired for refusing to work overtime hours when those hours are contrary to the Employment Standards Act, 2000);
- d) Are unreasonable in light of the norms of contemporary society; or
- e) Are unsafe (under Part V of the Occupational Health and Safety Act, workers in Ontario have the right to refuse unsafe work).
An employee is not insubordinate simply because they disagree with their employer on business matters, even if they express that disagreement in front of their fellow employees. Furthermore, insubordination will not be cause for dismissal if the employee has a reasonable explanation for the disobedience.