Henry, 31, had been working for seven and a half years as an auto body repair technician at the Fox Ford dealership in Woodstock, New Brunswick. He complained that his supervisor, Graham, a few years younger, had a “smug look”. Last year there was a minor shoving incident but nothing came of it.
Henry was a slow worker. One day, he was assigned to remove decals from two vans. Late in the afternoon, Graham came by and said to Henry, “I hope that’s the second truck.” Henry replied, “No, it’s the first. Maybe you’d like to do it yourself.” He became irate, started yelling and swearing at Graham saying, “What’s your fuckin’ problem? You’ve been on my fuckin’ case all day and I’m fuckin’ sick and tired of it.”
Henry taunted Graham five or six times to fire him. Finally Graham relented, “OK, you’re fired.”
Insubordination Versus Insolence
Employee misconduct comes in various forms such as dishonesty, conflict of interest, competing with the employer, breaching trust, disobedience (insubordination), incompetence and insolence. Dishonesty is the worst misconduct: for example, theft, fraud, misappropriation and false statements. Misconduct suitable for firing involves a serious lack of judgment that is incompatible with the employee’s duties.
..insolence is derisive, contemptuous or abusive language or conduct, perhaps expressed in a confrontational attitude, directed by an employee toward the employer.Insubordination is the deliberate refusal by an employee to obey the lawful and reasonable instructions of the employer. In 1959 Lord Evershed stated in Laws v. London Chronicle: “It is, no doubt, therefore, generally true that willful disobedience of an order will justify summary dismissal, since willful 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.”
Several instances of insubordination may cumulatively justify termination. One refusal, like a single incident of absenteeism, will usually not be enough to fire an employee unless it is so serious that it amounts to a repudiation of the employment contract. This is always a question of fact. The firing of a sales executive was upheld where he defied an order forbidding him to directly communicate with the company’s board of directors. Another employee who took home the employer’s proprietary customer information despite a confidentiality agreement prohibiting removal of such information from the premises was justly dismissed for cause.
Disagreeing with the employer, even in the presence of other employees or outsiders, does not necessarily constitute insubordination. A British Columbia judge in the 2010 case of Kokilev v. Picquic Tool Company concluded a manufacturing company vice-president was not sufficiently insubordinate to his employer to justify dismissal. He had expressed strong disagreement with the company’s president on business matters in front of other employees on several occasions. The eight-year employee was awarded damages of ten months’ pay.
By comparison, insolence is derisive, contemptuous or abusive language or conduct, perhaps expressed in a confrontational attitude, directed by an employee toward the employer. In general, several instances of insolence are required to fire someone. However, a single serious insolent act will justify summary dismissal if the employment relationship has been irreparably destroyed. This is judged by:
- whether the employee and superior are capable of continuing a working relationship;
- the incident undermined the supervisor’s credibility and ability to supervise effectively in the workplace; or
- the employer suffered a material financial loss, a loss of reputation or serious prejudice to its business interests as a result of the incident.
One “acrimonious discussion” between an insurance manager and his boss was found not to be sufficient insolence. Likewise, a rude message (“shove it”) faxed to the president of a hockey team was not cause for firing. The fired employee won 28 months pay as damages.
However, many single acts of insolence have led to justified summary terminations. In Blainey v. F.R. Hickey (Ont. 1985), a sales manager continued to interrupt and undermine his superiors at a sales meeting although he had been asked in advance of the meeting not to do so. His firing was upheld.
In Codner v. Joint Construction Ltd. (NL 1989), the sacking of an employee who called the company president a “fucking liar” during a private argument over the misuse of a company credit card was also upheld. In another case, hanging up the phone on a superior was adequate cause.
In Bennett v. Cunningham (ONCA, 2012) a lawyer operating a law firm was justified in firing an associate who sent her a letter accusing her of “dishonesty and negligence”. The relationship between lawyers working in the same office is fundamentally based on confidence, respect and trust, and the highly critical letter had destroyed the employment relationship. The cost of the allegations was not only the lost job. In the end, the employee had to pay for her own lawyer and the legal costs of her former employer through three levels of court.
In Wise v. Broadway Properties Ltd. (BCCA, 2005), the Court upheld the firing of a 10-year resident caretaker of an apartment block who believed for years he was not being paid for all his time and work. He wrote a five-page letter to his employer, venting his frustration at the perceived injustice of his unpaid work. He threatened to sue the employer, which the judge said was not itself a sufficient basis for firing.
Insubordination is the deliberate refusal by an employee to obey lawful and reasonable instructions of the employer.What was found to be unpardonable was this statement in the letter: “I do not expect to be treated as the unfortunate Jews were treated when impressed into working without pay for Mercedes Benz, Volkswagen and Siemens during the Second World War.” The Jewish employer, then in his 80s, (he died before trial), was deeply offended by this comparison and said he could no longer work with this person. The comparison drawn by the worker between his treatment and the treatment of the Jews as forced labourers irretrievably destroyed any chance of a workable relationship between the two men and the firing was upheld even though it was a single incident.
Henry versus Graham: The Outcome
Returning to the facts set out at the beginning of this article, do you think they are sufficiently serious to support firing?
The case is Henry v. Foxco Ltd., 2004 NBCA 22 (CanLII), http://canlii.ca/t/1gsb0. The trial judge concluded the confrontation justified dismissal, and one of the Court of Appeal judges agreed. However, the other two appellate judges reasoned that Henry’s actions did not repudiate an essential condition of his employment, and that this one incident was not serious enough to destroy the employment relationship. Despite the presence of many concerns about the ongoing employment relationship, the public nature of the insolence, and the intensity of the confrontation, the majority said Henry’s misconduct was a mere isolated incident of insolence that should be overlooked. Henry was having a bad day: “many things are said and done in the heat of the moment that, on reflection, are regretted by all. This is one of those cases.”
Consequently, the employer could not establish that Henry’s insolence led to irreparable harm to the working relationship, and that this isolated incident rendered it impossible for Henry and Graham to continue to work together. The employer was ordered to pay Henry $14,200.00 with 7% interest for four years, as well as his legal costs.
In Canadian employment law, there is a distinction between insubordination and insolence, although the terms are sometimes used interchangeably. Insubordination is the refusal to follow an employer’s direction. Insolence, the weakest category of misconduct, is characterized by words and attitudes, which explains why it will be harder to justify termination upon one act of insolence. In most cases there will be evidence of both insubordination and insolence. A single incident of either may be sufficient to justify an employee’s summary dismissal but outcomes in these cases are hard to agree upon and predict.