Generally, employers have the right to manage and reorganize the workplace as they see fit, subject to the terms of a collective agreement, if applicable. This right includes the right to change business processes and introduce new technology or new systems of operation. Where an employer orders an employee to train on a new system, and the order is lawful and reasonable, the employer has a right to expect that the order will be obeyed. An employee’s refusal to obey a lawful and reasonable order would constitute insubordination. However, it is important to note that the directive to train must be unambiguous. Condoning the refusal to train, such as allowing an employee to work despite his or her refusal to train, may not constitute insubordination.
An unreasonable training order would include one that endangers the health and safety of an employee, or that is not within the reasonable scope of the employee’s work. Where an employee argues that he or she has sufficient work already and that training on something new is not needed, it will be important for the employer to ensure that training is, in fact, necessary. As well, an employee should be paid for training and not penalized for the inability to complete existing assignments while undergoing training. To reduce the risk of a constructive dismissal claim, an employer should also avoid saddling an employee with an unreasonable amount of extra work as a result of introducing a new system.
Employers are permitted to introduce training even where it is not part of an employee’s existing job description or part of the employment agreement. In Klassen v. C.A. Bailey Ltd. (c.o.b. Southway Charter Service),1 an arbitrator held that the unionized employee, a driver, had abandoned his position when he continued to refuse to take first aid and CPR training. The employee refused training on the grounds that it had not been a condition of his employment when he was hired. The arbitrator found that the employer had communicated the requirement numerous times and also gave the employee many opportunities to meet the reasonable requirement. The employee was also advised that in order to drive he had to take the training, but he refused to do so. The refusal to train constituted an abandonment of his position.
Where an employee refuses a lawful and reasonable order to train, discipline may be warranted. The discipline imposed for an act of insubordination, like all other types of misconduct, must be just and reasonable. In most circumstances, this will include some type of disciplinary measure, short of summary dismissal. Progressive discipline for an employee who continues to refuse training could include warning letters, suspensions and, ultimately, dismissal under certain circumstances.
Rarely will a single act of insubordination constitute just cause for dismissal. A single act may be sufficient, but various factors are to be considered, including the following:
- the magnitude of insubordination (the impact or potential impact upon the employer);
- whether the employee’s conduct was wilful and deliberate;
- whether the employer’s direction was clear and unequivocal;
- whether the direction was lawful and reasonable, including within a reasonable scope of the employee’s work or job description; and
- whether the employee was aware of the consequences of refusing to follow a directive; i.e., was discipline a recognized consequence of refusal;2
The courts will also take into account the entire employment history of an individual in determining whether dismissal is appropriate. For example, in Mazur v. International Paper Canada Inc.,3 a non-unionized employee was dismissed after declining to attend a twoday, out-of-town training course on the introduction of a new computer system, due to family commitments. Although the employee was advised that her attendance was mandatory, the court held that dismissal was not warranted given her unblemished work record, long service of 17 years, and good reputation. The court also noted that the employee could have been accommodated as training could have been made available at another time.
Conversely, in Lucerne Foods Ltd. v. International Union of Operating Engineers, Local 955,4 the refusal to train was grounds for dismissal where a unionized employee did not obey an order to attend a training meeting. In this case, the arbitrator held that dismissal was the appropriate penalty given the employee’s prior discipline record of two suspensions, even though the suspensions were unrelated to training.
In conclusion, although employers generally have a right to order training, unionized and non-unionized employers alike must ensure that any order is lawful and reasonable. Employers must act reasonably where employees resist or refuse training. If an employee has a reasonable explanation to refuse training, an employer may be required to accommodate the employee. Moreover, if an employee has a disability that would limit training or the use of a new system, an employer would be required to accommodate such an employee to the point of undue hardship.