One of the most challenging issues in the workplace is dealing with bad attitude and employees refusing to perform the work for which they were hired. Disruptive behaviour can take on many forms: outright refusal to carry out work, manifest non-performance, inappropriate comments, persistent complaints and non-verbal communication expressions of dissatisfaction (i.e., eye rolling, sighing, etc.). Employers dealing with employees who have a negative and disruptive attitude often consider dismissal for insubordination and insolence. What exactly are those two concepts?

They often go hand in hand, but are not the same

As noted by the New Brunswick Court of Appeal in Henry v. Foxco Ltd. (trial and appeal), courts (and employers) tend to use the terms "insolence" and "insubordination" interchangeably, even though they’re distinct categories of misconduct. Insolence refers to derisive, abusive or contemptuous language, generally directed at a superior. Insubordination refers to the intentional refusal to obey an employer’s lawful and reasonable orders. While insolence can amount to insubordination, the two terms aren’t synonymous, but the two types of behaviour often occur together.

In Foxco, the plaintiff employee was dismissed for one incident of misconduct. He was a repair technician and had been instructed to remove decals from two vehicles. A supervisor questioned the employee about the length of time it took him to perform his work and his choice of tools. The employee responded, in the presence of co-workers, by yelling profanities and challenging the employer to fire him. The employer suggested that the employee go home to cool off but the employee refused. He was terminated and sued for wrongful dismissal. The trial judge found that the employer had established just cause and dismissed the action. The employee appealed the decision.

On appeal, the court found that the employee had been wrongfully dismissed. The court, however, was divided in how to characterize the plaintiff’s behaviour. Justice Larlee decided that the employee’s use of profanities amounted to insolence and his refusal to go home amounted to insubordination. However, this single incident wasn’t so severe that it would destroy the employer-employee relationship given the employee’s tenure (7 and a half years) and positive employment performance in the past.

Justice Robertson found that the misconduct was insolence, but not insubordination. Given that insolence is deemed less serious than insubordination, the misconduct did not justify summary dismissal. Justice Robertson stated that a single incident of insolence will amount to just cause for dismissal in one of three circumstances:

  • The employee and superior are no longer able to maintain a working relationship;
  • The incident destabilizes the supervisor’s credibility in the workplace and, thus, his or her ability to properly supervise; or
  • As a result of the incident the employer suffered a material financial loss, loss of reputation, or its business interests were seriously prejudiced.

As in all discipline cases, the court considers mitigating factors, such as the employee’s work history and employment record.

Case law indicates certain trends in cases of insubordination or insolence:

  1. The range of conduct that can constitute insubordination is broad. It generally relates to performance of some aspect of the employee’s job but may also include a refusal not directly concerning a work assignment;
  2. Insolence can amount to insubordination where the insolent behaviour, exclusive of any refusal to comply with orders, involves resisting and/or defying an employer’s authority;
  3. Generally, two or more instances of insolence or insubordination are required for cause;
  4. However, the gravity of the offence (whether insolence or insubordination) must be examined;
  5. If the employee has a reasonable excuse, such as provocation, the conduct may be excused; and
  6. Other relevant circumstances, such as generally tolerated language and behaviour in the workplace, can mitigate the severity of the misconduct.

Determining whether insolent or insubordinate conduct amounts to just cause for dismissal is challenging for both employers and courts. In making a decision to dismiss or impose other, less severe sanctions, employers must carefully consider the facts and circumstances of the individual case: the number of instances of misconduct, the gravity of the offence, whether there was a reasonable excuse for the employee’s conduct or other mitigating factors and whether the employer’s authority was challenged. Generally, disciplinary sanctions other than dismissal will be required. However, in exceptional cases or in the presence of repeated misconduct, the employee’s insubordination or insolence may amount to cause for dismissal.

What’s an employer to do?

Where an employer can establish that an employee has been insubordinate, insolent or both, it’s appropriate to impose discipline. Insubordination is one of the most serious industrial offences, as it affects the employer’s right to manage. The right to order employees to carry out work without extended debate and without a loss of respect is central to the role of management. Nonetheless, in all disciplinary matters, employers must apply progressive discipline where indicated and impose the appropriate penalty given the severity of the misconduct and whether mitigating factors are present.

Disciplinary sanctions have generally not been found to be appropriate where an obscene or abusive outburst towards the employer can be characterized as a momentary flare-up of temper that doesn’t challenge the employer’s authority. Minor disciplinary sanctions have been deemed appropriate where the employee’s language and conduct isn’t particularly disruptive, insulting or contemptuous of management. More severe discipline, including discharge, has been supported where insolent language has been used in conjunction with either a refusal to follow an employer’s instructions or where it has been accompanied by threats or assault.