Member Article

We all know that the employment relationship can involve some give and take.  Employees today are better educated and more aware of their rights, and accordingly more willing to voice concerns about management. When, however, does employee conduct cross the line from criticism to insubordination
?  Specifically, when does such conduct amount to just cause for summary dismissal in a non-union workplace?

The general approach to considering whether employee conduct amounts to just cause is to view the incident in the context of the entire employment relationship.  Factors such as the seniority, employment history, and responsibilities of the particular employee are relevant and must be considered alongside the nature and extent of the employee’s misconduct.  Generally, a single incident of insubordination does not amount to just cause for dismissal, but this threshold may be met if the mutual trust and respect between an employer and the employee is so damaged by the misconduct that it would be impossible to carry on the employment relationship.

It is worth considering two recent British Columbia cases with contrasting results that help inform employers as to what amounts to just cause dismissal for insubordination.

In Grewal v Khalsa Credit Union, 2011 BCSC 648, a branch manager was properly dismissed with just cause where, through legal counsel, she wrote to her employer demanding an apology for its investigation of her suspicious conduct.  She sent copies of her demand to the provincial regulatory agency and to the company’s board of directors.  The Court found not only that the investigation into her conduct was justified, but also that her demand letter was effectively a deliberate effort to permanently damage the CEO’s reputation.  The letter “permanently undermined the employment relationship” and amounted to just cause for dismissal.

Conversely, in Rodrigues v Shendon, 2010 BCSC 941, the manager of a Dairy Queen received more than 16 months pay in lieu of notice for her wrongful dismissal.  In this case, the manager had received a letter from management indicating that her performance and conduct had been unacceptable and instructing her that she was on probation.  The manager proceeded to complain to her staff and to customers about the letter, becoming uncooperative and disobeying instructions to work.  Here, the court noted that the manager had not received sufficient notice to change her conduct and found her dismissal to be unjustified.

So what level of insubordinate conduct by an employee constitutes sufficient grounds for summary dismissal
?  Courts will not just consider the nature of the insubordination, but the entire context of the employment relationship.  Employers should consider the following questions when assessing whether they have just cause to dismiss an employee for insubordination:

• How serious is the insubordination?
• Was the employee’s conduct premeditated or repetitive, or was it a momentary and isolated event?
• What is the employee’s length of service and previous work record?
  
• Have more moderate forms of corrective discipline been attempted and proven unsuccessful in solving the problem?
  
• Has the employer been consistent in its approach to discipline in similar circumstances?
  
• Was the employee provided the opportunity to explain or deny the offence?
  
• Did the employee fail to apologize after being given the opportunity to do so?
  
• Does the penalty imposed create any special economic hardship on the individual?
  
• Are there any mitigating circumstances that should be considered?
  
  For more information please contact Nicole Skuggedal at [email protected] or 604.631.6795.