It is an unfortunate reality that most employers, should they operate long enough, will eventually be confronted with some form of employee misconduct. This article delves deep into one particular type of misconduct: insubordination. To that end, below we will review what “insubordination” entails, consider two brief case studies (one where insubordination was made out, and the other which resulted in wrongful dismissal) and conclude by reviewing employer best practices for responding to insubordination in the workplace.

What is insubordination?

At its simplest, insubordination involves a worker who fails to follow an order.

To trigger a potential charge of insubordination, orders must be:

a) clear and unambiguous;

b) within the scope of the worker’s job duties; and

c) lawful and ethical.

Likewise, to qualify as insubordinate, an employee must intentionally disregard instruction. If a task fails to get done, but the worker has a good explanation for why this occurred, insubordination will typically not be made out.

Employers should take care, however, not to conflate insubordination with insolence. These two forms of misconduct are quite similar (and sometimes both occur at once) but they are in fact separate grounds of wrongdoing.

A good summary of the difference between insubordination and insolence can be found in a 2019 Ontario Small Claims Court decision, where Deputy Judge Klein explained:

The Courts tend to employ the terms “insolence” and “insubordination” interchangeably, even though they are distinct categories of misconduct. “Insolence” can be defined as an employee’s derisive, abusive or contemptuous language, generally directed at a superior. “Insubordination” means an employee’s intentional refusal to obey an employer’s lawful and reasonable orders. Insubordination and disobedience are synonymous, however insubordination and insolence are not. Generally, both types of behaviour often occur together; few cases demonstrate insolent behaviour in the absence of insubordination and vice versa.

Insubordination case studies

Two decisions from British Columbia provide helpful insight into what does, and does not, qualify as insubordinate behaviour.

Our first example concerns a financial comptroller who was fired for repeatedly defying instruction to not discuss an internal accounting and property tax issue with third parties. The worker attempted to defend his conduct by stating he had acted in accordance with his professional and ethical obligations. In other words, the worker suggested that the orders he had disregarded where improper and/or dishonest. Everything thus turned on whether the courts considered the employer’s orders as legitimate.

Both the trial judge and Court of Appeal ultimately rejected the worker’s attempted defence, with the latter concluding:

…he wilfully ignored the directions of his employer, conveyed veiled threats to his employer, disclosed to third parties confidential information regarding his relationship with [the employer] that cannot be justified, and made repeated, unsubstantiated and increasingly serious allegations of ongoing misconduct, including alleged criminal misconduct, on the part of [the employer]. [emphasis added]

The financial comptroller’s dismissal for cause was accordingly upheld.

Our second example involves the general manager of a hotel who was fired for cause after refusing an order to approve a budget which she believed was inaccurate and unrealistic. In explaining her conduct, the general manager relied upon the employer’s own “Accounting Policy” that stated hotel budgets must be jointly approved by each hotel’s leadership and the corporation’s executive. Her employer, nonetheless, framed the general manager’s refusal as insubordination.

After reviewing the evidence, the court sided with the general manager and concluded that she had not acted insubordinately. Indeed, the order the general manager had failed to follow was not one her employer was entitled to issue due to its own Accounting Policy. Moreover, with respect to the application of policies in general, the court provided employers with this important reminder:

An employer is entitled to demand an employee’s loyalty and commitment, and to require an employee to carry out the employer’s policies.  An employee who does not agree with an employer policy has the option of leaving the employment relationship or declining the offer of employment in the first place. However, an employee is as entitled as the employer to rely on policies governing the employment relationship. The employer is not entitled to ignore its own policies when it suits its purposes. [emphasis added]

Given the general manager was not found to have acted in an insubordinate manner, the court concluded she had been wrongfully dismissed and ordered damages equal to 15 months of total compensation.

Best practices for responding to insubordination in the workplace

If your organization is faced with a potential case of insubordination, take the following steps:

• Collect information – insubordination, as with most types of workplace misconduct, requires contextual analysis. As such, employers should start by assembling relevant documents, records, and sources of evidence related to the incident in question. This also includes speaking to the worker who has (allegedly) acted in an insubordinate fashion to obtain their explanation;

• Avoid condonation – assuming your investigation demonstrates that the worker ignored a valid order, and has no legitimate excuse for their conduct, action is required. Employers who fail to respond in a timely manner to insubordination risk having their inaction later deemed to be condonation of the worker’s conduct; and 

• Respond proportionally – not all incidents of insubordination will justify cause for dismissal. An employee’s prior disciplinary history, job tenure, explanation of their actions, and the nature of the insubordination will play important roles in determining what type of disciplinary response is appropriate. For more minor cases of insubordination, a verbal or a written warning may be sufficient. Yet if the insubordination is serious enough (and thus strikes at the very heart of the parties’ employment relationship) even a single incident may justify summary dismissal.

By Andrew Vey, Vey Willetts LLP

If you are looking for a discipline or code of conduct policy, try PolicyPro®, Canada’s Top HR/Payroll and Internal Controls Policy Management Software, published by First Reference.