Understanding Insubordination
Some guidance on a misunderstand reason for discipline
Insubordination sounds very serious, doesn’t it? And in most workplaces, it is. Some collective bargaining agreements even go so far as to list insubordination as a reason for summary discharge, meaning that the employer need not use progressive discipline before dismissing an employee. As a bad act, it ranks up there with theft, violence, and on-the-job drug use.
Insubordination is generally understood to occur when an employee refuses to obey a supervisor’s direct order. While such a definition sounds straightforward, the term is understood to have components present that confirm that insubordination occurred. In other words, the employer has to prove just cause AND the elements of insubordination.
The elements that need to be present include the following:
Clear or direct order: did the employee know what was being required and know that compliance is required?
Reasonable order: Can the order be performed or understood as reasonable by the typical worker in that position?
Knowing refusal: Did the employee knowingly and willingly refuse to comply with the order?
Consequences: Is the employee aware that discipline could result from their refusal to perform the directive?
Time to Comply: Was the employee given sufficient time to comply with the direct order and still failed to do so?
Except in cases involving health and safety or certain legal rights, employees who believe that they should not have to perform the work are expected to follow the order and file a grievance afterward rather than engage in “self-help” by refusing to do the work.
Let me pause for a moment and talk about those exceptions. An employee who believes that they or others may be hurt if they follow the direct order has a strong defense to a charge of insubordination. If a direct order requires someone to break the law or is itself a violation of the law can also be defensibly opposed.
So what counts as a “direct order”? Some of them are obvious and others are more subtle. Here’s a scenario.
Supervisor Nellie tells Worker Laura: “Bring the pallets of widgets to the store room immediately. Or else.” There’s no real emergency need for the widgets to be in the storeroom. Laura says, “NO,” and spits on the floor. Four hours later, right before her shift ends, Laura brings the pallets to the storeroom but does not tell Nellie. She leaves. The next day, she’s terminated for insubordination but there isn’t a specified order that it refers to.
The arbitrator and the parties have a lot to work with here.
There’s one obvious order (Bring the pallets . . . immediately) and one silent but presumed order (Do not spit in the workplace).
The spitting rule is reasonable. Spitting is gross and unhygienic; doing it in the workplace is a violation of a code of conduct and adults should not need to be told “Do not spit.” But is “do not spit” an “order”?
The Pallets order is mostly reasonable but there might be a question about whether “immediately” was reasonable. What if Laura was on a scaffolding and could not alight safely? What if Laura wasn’t forklift certified and therefore not able to move the pallets? Or what if Laura was engaged in another task she’d been ordered to do?
Laura seems to have “knowingly refused” at the time the order was given, but she finished the task before the end of her shift. So did she actually refuse?
Did Laura know that there would be consequences when Nellie said, “Or else?” That might depend on whether Laura had training about the discipline process or had been disciplined in the past. There may be other evidence that will demonstrate whether Laura knew there would be consequences.
Laura wasn’t given time to comply, since Nellie said she wanted it done “immediately. Or else.” However, if Laura wasn’t engaged in other work and had no legitimate reason to delay complying, she may not be able to argue that there wasn’t time to comply. If Nellie had terminated Laura within minutes of her refusal, it might be a closer call, but Laura had time to repair the situation soon after. It’s not clear that completing the task hours later repaired the situation since she did not notify Nellie or demonstrate that she understood her actions were inappropriate.
I’m not going to say how I would rule in this case but I’d love to hear what you think! Did I miss any issues with the case? What would you want to know if you were the manager or union representative investigating the situation? Can you see it from the “other side”? I look forward to hearing from you!
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