EMPLOYMENT LAW CONFERENCE—2015
PAPER 13.1
Insubordination and Insolence: Just Cause for
Summary Dismissal?
These materials were prepared by Jennifer Kwok and Carman J. Overholt, QC, both of Overholt Law – Barristers &
Solicitors, Vancouver, BC for the Continuing Legal Education Society of British Columbia, May 2015.
© Jennifer Kwok and Carman J. Overholt, QC
13.1.1
INSUBORDINATION AND INSOLENCE: JUST CAUSE FOR
SUMMARY DISMISSAL?
I.
Refusal to Comply with Employer’s Instructions .................................................................... 2
II.
Unacceptable Professional and Public Behaviour ..................................................................... 4
III.
Criticism of the Employer in Email or Letter............................................................................ 6
IV.
Vile Insult ...................................................................................................................................... 12
It is a well-accepted principle at common law that an employer may summarily dismiss an
employee for just cause. Just cause is well understood to encompass employee conduct that is
incompatible with the duties that go to the “root” of the employment contract, and consequently
“fractures the employment relationship in such a way that the employer cannot be expected to
provide the employee with a second chance.”1 Serious misconduct, habitual neglect of duty,
incompetence, conduct incompatible with core duties or prejudicial to the employer’s business, or
wilful disobedience to the employer’s orders in a matter of substance have long been recognized as
conduct which may support the employer’s right summarily to dismiss the delinquent employee. 2
The more difficult question that most employers face is how to determine whether the employee’s
misconduct, in fact, constitutes just cause.
The Supreme Court of Canada, in its benchmark 2001 decision of McKinley v. BC Tel, 3 laid out the
test for cause. A contextual approach is applied to determine whether the misconduct constitutes
just cause 4; in other words, it is a question of proportionality. The employer is required to strike an
effective balance between the severity of the employee’s misconduct and the sanction imposed. 5
Indeed, the courts have firmly established that in exceptional circumstances, a single act of
misconduct can justify summary dismissal where it is “serious and incompatible with an employee’s
duties and prejudicial to an employer, or irreparably harms the relationship between employer and
employee.” 6 The onus rests on the employer to prove that there was cause for summary dismissal
of an employee. 7
1
Leung v. Doppler Industries Inc., 1995 CanLII 2530 (B.C.S.C.), [1995] B.C.J. No. 690, 10 C.C.E.L. (2d)
147 at para. 26 (S.C.), aff’d (1997), 1997 CanLII 3435 (B.C.C.A.), 27 C.C.E.L. (2d) 285, 86 B.C.A.C. 137.
2
Port Arthur Shipbuilding Co. v. Arthurs, 1967 CanLII 30 (Ont. C.A.), [1967] 2 O.R. 49, 62 D.L.R. (2d)
342 at 348 (C.A.), rev’d on other grounds 1968 CanLII 29 (S.C.C.), [1969] S.C.R. 85, 70 D.L.R. (2d) 693.
3
McKinley v. BC Tel, 2001 SCC 38 (CanLII), 200 D.L.R. (4th) 385, rev’g (1999), 1999 BCCA 308
(CanLII), 67 B.C.L.R. (3d) 337, 42 C.C.E.L. (2d) 168 (C.A.) (“McKinley”).
4
Ibid. at paras. 48-51.
5
Ibid. at paras. 53 and 57.
6
Kim v. International Triathlon Union, 2014 BCSC 2151 (“Kim”) at para. 205.
7
Kirby v. Amalgamated Income Limited Partnership, 2009 BCSC 1044 at para. 159 and Mejia v. LaSalle
College International Vancouver Inc., 2014 BCSC 1559 (“Mejia”) at para. 49.
13.1.2
Theft, dishonesty and fraudulent acts by an employee are typically straightforward and easily
identified by the employer as constituting “serious misconduct” justifying summary dismissal.
Situations involving insubordinate acts and insolent statements made by an employee, not
surprisingly, are not as clear-cut and simple. For example, under what circumstances, if any, can a
single act of disobedience or rude behaviour by an employee justify immediate termination? During
this electronic age when businesses are investing a considerable amount of thought and money into
promoting and manicuring their online presence in ways that will bring them the most positive
value, do employees have any obligations to refrain from publically criticizing or making negative
statements about their employers, particularly on social media?
While the terms insolence and insubordination are often used together or interchangeably, they are
distinct concepts. Insolence has been often described as derisive, contemptuous, or abusive
language or conduct by an employee directed at his or her employer, 8 whereas an employee’s refusal
to carry out a supervisor’s instructions is characterized as insubordination. This paper examines the
most recent case authority in order to identify under what conditions the courts have held that
insubordinate and unprofessional behaviour or disrespectful and insolent statements by an
employee will constitute just cause for summary dismissal.
I.
Refusal to Comply with Employer’s Instructions
Insubordination will not constitute cause unless the employer establishes that the employee
“breached an essential condition of the contract of service.” 9 This may occur where the employee
has wilfully defied a “clear and unequivocal” instruction or refused “to carry out a policy or
procedure well known by the employee to be central to the fulfillment of the employer’s
objectives.” 10 As is clear from the BC Court of Appeal decisions in Panton v. Everywoman’s
Health Centre Society (1988) and Stein v. British Columbia (Housing Management Commission) 11
an essential implied term of the employment contract is that an employee will follow lawful orders
given by the employer, and it is not for the employee to question the wisdom of company policies.
However, not every refusal to follow an employer’s order will amount to repudiation of the
employment contract. Under what circumstances will an employee be entitled to disregard its
employer’s instructions?
The BC decisions of Staley v. Squirrel Systems of Canada, Ltd. (“Staley”) 12 and Adams v. Fairmont
Hotels & Resorts Inc. 13 (“Adams”) provide good examples of the tension that often develops where
there has been an unequivocal instruction by the employer and a subsequent refusal to follow those
instructions by the employee. In the case of Adams, the defendant employer summarily terminated
the General Manager of one of its hotels for insubordination after she refused to follow a directive
concerning the preparation of the hotel’s annual budget. Ultimately, the Court determined that the
plaintiff’s refusal to comply with the defendant’s directive was not insubordination because it was
8
Bennett v. Cunningham, [2006] O.J. No. 4446 (S.C.J.), aff’d 2012 ONCA 540, rev’g 2011 ONSC 28.
9
Adams v. Fairmont Hotels & Resorts Inc., [2009] B.C.J. No. 1017, 2009 BCSC 681 (“Adams”) at para. 278.
10
See Adams, supra at para. 278 and Panton v. Everywoman’s Health Centre Society (1988), 2000 BCCA
621 (“Panton”) at para. 33.
11
(1992), 65 B.C.L.R. (2d) 181 (C.A.).
12
[2013] B.C.J. No. 860, 2013 BCCA 201, aff’g 2012 BCSC 739(“Staley”).
13
Adams, supra.
13.1.3
an order that the employer was not entitled to issue. Specifically, the employer’s demand to
Ms. Adams to prepare and approve the budget as it directed was contrary to the defendant’s
accounting policy. The employer was not entitled to insist that Ms. Adams sign off on it as a result
when she expressed reasonable concerns about the appropriateness of the ordered changes.
Ms. Adams’ decision not to follow the directive did not breach an essential condition of her
employment contract as Fairmont was not entitled to “unilaterally dictate the budget’s bottom line
from the outset of the budgeting process, or demand Ms. Adams prepare and approve a budget with
which she did not agree.” 14
This case makes it clear that where an employer chooses to set policies that govern its conduct, as
well as that of its employees, the employer should expect to be held to those policies and the
legitimate expectations they create on the part of both the employer and employee. 15 Here, it was
determined that the corporate management’s autocratic stance was at odds with the job description
of General Manager and the corporate values espoused in Fairmont’s Code of Ethics. 16 While an
employer is entitled to demand an employee’s loyalty and commitment, if Fairmont was of the view
that the plaintiff no longer shared its corporate vision or values, it was entitled to terminate
Ms. Adams’ employment, provided that it gave Ms. Adams reasonable notice of the termination or
severance pay in lieu. In the same vein, an employee who does not agree with an employer policy
has the option of leaving the employment relationship. In either case, both the employer and
employee are entitled to rely on the policies that govern the employment relationship. 17
A differing result arose in the decision of Staley. Here, a 16 year manager of Squirrels Systems of
Canada Ltd. informed his employer that he would be relocating from Burnaby, BC to Montreal,
Quebec after his wife, a RCMP member, secured a position there. The employer allowed
Mr. Staley to work from Montreal on a temporary basis while it considered his request to work
remotely on a permanent basis. After approximately four months of Mr. Staley working in
Quebec, the employer proposed a new contract that provided it could recall Mr. Staley to BC at any
time, with a termination provision of three months. When Mr. Staley did not accept this proposal,
the employer ultimately decided that it would not allow the relocation of head office employees
outside of the greater Vancouver area and directed Mr. Staley to return to the Burnaby office.
When Mr. Staley replied that he would not, Squirrel terminated his employment without notice or
payment in lieu.
The Court of Appeal affirmed the trial judge’s conclusion that Squirrel had reasonable cause to
dismiss Mr. Staley on the basis that his refusal to return to the Burnaby office as directed
constituted “an act of willful disobedience and insubordination” amounting to a repudiation of the
employment contract. 18 Mr. Staley was not entitled to work in Montreal without the employer’s
agreement, and clearly, he had conducted himself in a manner inconsistent with the continuation of
his contract of employment.
14
Adams, supra at para. 307.
15
Adams, supra at para. 300.
16
Ibid. at para. 323.
17
Ibid.
18
Staley, supra at para. 28.
13.1.4
II.
Unacceptable Professional and Public Behaviour
Under what conditions will an employee’s critical, insolent, abusive or unprofessional comments or
negative behaviour against their employer justify termination for just cause? While as a general
proposition the courts have held that an employee should be entitled to criticize his or her superiors
without fear of immediate dismissal, the courts are clear that in some circumstances criticism can
“undermine the employment relationship and render it impossible for the employee and her
manager to continue working together”; and when this occurs “it is clear that the employee’s
conduct will constitute just cause for immediate dismissal.” 19 Again, as apparent in Adams, the
cases in this area reinforce the courts’ view that where an employer chooses to set policies that
govern its conduct as well as that of its employees, both the employer and employee should expect
to be held to those policies. Unless the misconduct can be described as “an exceptional
circumstance,” before the employer can rely on the unprofessional behaviour of any of its
employees as misconduct justifying termination for cause, the employee may need to have been
advised of the employer’s expectations and told the consequence of non-compliance.
Two recent cases, Mejia v. LaSalle College International Vancouver Inc. (“Mejia”) 20 and Kim v.
International Triathlon Union (“Kim”), 21 examine employee misconduct in the context of determining
when an employee’s unprofessional “public” behaviour, in fact, constituted just cause. In Mejia, the
plaintiff was employed by LaSalle College as a design instructor teaching computer design software
and photography. LaSalle claimed that it had cause to terminate the plaintiff’s employment for his
conduct during a workshop he taught, due to “a violation of the code of conduct outlined in the Staff
Handbook” and which was deemed by the College to be “professional unacceptable behaviour.” 22
The evidence accepted by the court was that at a workshop instructed by the plaintiff, Mr. Mejia
made a number of disparaging statements about the College to the student attendees. The
unacceptable behaviour relied on by the College was as follows: Mr. Mejia spent a good portion of
the class time advising students that they should file complaints against LaSalle with the PCTIA,
(the Private Career Training Institutions Agency); he actually opened the PCTIA website to show
them how to file their complaints; he made comments that the Academic Coordinator, Mr. Torrella,
was providing the students with illegal, unlicensed computer programs; he stated that he was
supposed to have Mr. Torrella’s position, and that he was not happy with his rate of compensation;
he made comments that the College, the program and diplomas the students were pursuing at
LaSalle were not legitimate; and he stated that after graduation, the diploma would be of no use to
them, and not assist them in finding jobs in their field.
The LaSalle Staff Handbook stated in part that an instructor should “Be professional in your
approach and have a clear understanding of your work and professional duties” and that “Any
professionally unacceptable behavior will be subject to disciplinary measures which may include
dismissal.” 23 The College maintained the position that “inciting students to file complaints against
the school” constituted “professional unacceptable behaviour” contrary to the Staff Handbook. 24
19
See Van Der Meij v. Victoria Immigration and Refugee Centre Society, [2008] B.C.J. No. 1374, 2008
BCSC 954 (“Van Der Meij”) at paras. 60-61.
20
Mejia, supra.
21
[2014] B.C.J. No. 2841, 2014 BCSC 2151.
22
Mejia, supra at para. 29.
23
Ibid. at para. 88.
24
Ibid. at para. 111.
13.1.5
Based on these facts, the court agreed with the College that it had cause to terminate Mr. Mejia’s
employment with respect to his conduct at the workshop. The plaintiff’s duty as an instructor who
worked largely unsupervised in the classroom was to “deliver LaSalle’s curriculum to the students
who had chosen LaSalle for career training in interior design, and he had an obligation to act at all
times in the best interests of LaSalle, in a professional manner, and in accordance with LaSalle’s
policies on professional behaviour and instructors’ responsibilities as clearly set out in the Staff
Handbook.” 25 The plaintiff’s behaviour was in complete conflict with LaSalle’s best interests and
the duty he had as an instructor. As a result, there was “no doubt that the relationship between
LaSalle and the plaintiff was irreparably damaged due to his conduct,”26 which went to the root of
the employment relationship. The Court was satisfied that LaSalle’s actions were proportional to
the degree and nature of the plaintiff’s breach of his employment contract with LaSalle.
Interestingly, the recent decision in Kim concluded with a different result to Mejia. This case is
noteworthy and interesting in that it deals with the question to what extent employees may be
accountable for the statements they make on personal social media accounts that are critical of their
employers, and the duty an employer may have to warn an employee that the employee’s conduct
on social media is unacceptable before it can justify dismissal for cause. Here, the plaintiff brought
an action against her employer, the International Triathlon Union (“ITU”), for wrongful dismissal
without reasonable notice. ITU pled cumulative cause to terminate Ms. Kim for certain statements
she made on various social media platforms which it characterized as derogatory and defamatory.
The employer’s position was that these statements made by Ms. Kim constituted unprofessional,
insubordinate conduct and a negative attitude justifying cumulative cause for dismissal.
The facts of the case were as follows: the plaintiff’s position at ITU was Senior Communications
Manager; she worked with the media and wrote press releases, athlete biographies, web stories and
the ITU newsletter. Ms. Kim characterized the workplace as casual and informal with no social
media, communication, or internet use policy, even though ITU used Facebook, Twitter, and the
Internet as part of its public media presence. The plaintiff maintained Twitter and Facebook
accounts, and a personal blog which ITU knew about. During her employment, there were no
formal or verbal performance reviews, no employee handbook, and Ms. Kim was not provided any
feedback with respect to her communication style in fulfilling her duties.
The “disrespectful, pejorative, and unnecessarily inflammatory” 27 comments that ITU specifically
referred to as inexcusable consisted of three tweets, a Facebook post, and a lengthy statement
Ms. Kim made on her personal blog. Specifically, ITU submitted that the plaintiff’s tweets showed
a lack of respect and poor judgment and professionalism from a senior manager of communications
as they implied: 1) that the international federation of an Olympic sport used propaganda, and
2) that the Executive Board members had gotten drunk during Congress, one of the largest and
most important events for the international triathlon governing bodies. The argument was that
these comments “could have no other effect other than to destroy her employment relationship
with ITU” 28 given the fact that she published her comments “on a forum with a worldwide
audience, and knowing she had followers in the global triathlon community.” 29
25
Ibid. at para. 87.
26
Ibid. at para. 90.
27
Kim, supra at para. 170.
28
Ibid. at para. 174
29
Ibid. at para. 170.
13.1.6
With respect to her blog post, ITU contended that it was essentially “an open letter criticizing her
immediate supervisor and employer when the plaintiff directly compared her supervisor,
Ms. Barnett, to a ‘child beater.’” 30 The blog posting was written in response to Ms. Barnett’s refusal
to grant the plaintiff her requested vacation, and appeared to compare Ms. Barnett’s actions to the
physical and psychological violence the plaintiff had experienced as a child abused by her mother.
According to ITU, cumulatively, these events made it impossible for ITU and the plaintiff to
continue working together.
The plaintiff argued that she had not been given any opportunity to explain the social media posts,
or warned that her employment was at risk if she did not change her communication style before
she was terminated. In response, ITU argued that where a “triggering event is serious misconduct
or where a triggering incident gives rise to cause in itself,” a warning of termination is not
necessary. 31 It was submitted that the blogs and the tweets sent during Congress negated the need
for any warnings to Ms. Kim whatsoever given the severity of her comments on social media, and
her senior management position in the field of communications.
The court did not make an actual finding as to whether the plaintiff’s social media posts amounted
to “an accumulation of misconduct, and that the … blog was the tipping point supporting the
plaintiff’s termination for cause,” because the court concluded that the facts of this case did not
support ITU’s position that there was no need to warn the plaintiff before her termination. In the
judgment, the court emphasized the fact that Ms. Kim had been given “no written or oral warning
that the impugned social media posts were inappropriate and unacceptable and that if she did not
cease and desist from such performance and change her ways that her continued employment was in
jeopardy.” 32 Because Ms. Kim was never reprimanded, disciplined or criticized specifically
regarding the content of the social media posts relied upon by ITU for cumulative cause,
notwithstanding that Ms. Barnett found them “troubling, offensive, and in the case of the blog,
shocking,” 33 ITU could not rely upon cumulative cause as a ground for the plaintiff’s termination
without an “express and clear warning about her performance relating to the social media posts and
a reasonable opportunity to improve her performance after warning her.” 34 This was not a case
where the employee “ought to have clearly understood from the surrounding circumstances that the
employee’s job was in jeopardy if the conduct continued.” 35
III. Criticism of the Employer in Email or Letter
Are there circumstances in which a single email or letter written by an employee criticizing the
employer or direct supervisor of the employer can effectively destroy an employment relationship
and justify summary dismissal for cause? What is clear is that where an employee’s complaint or
criticism about his/her manager is provoked by unreasonable conduct or where the complaints are
30
Ibid. at para. 172.
31
Ibid. at para. 176.
32
Ibid. at para. 219.
33
Ibid. at para. 220.
34
Ibid. at para. 221.
35
Ibid. at para. 218. The court distinguished these facts to those found in Grewal v. Khalsa Credit Union,
2011 BCSC 638, aff’d 2012 BCCA 56 and Gichuru v. Smith, 2013 BCSC 895, rev’d on other grounds,
2014 BCCA 414 where the employee had received specific notice criticizing the employee’s conduct
before termination.
13.1.7
reasonably justified on the facts the employer may dismiss the employee; however, the obligation to
give proper notice or pay in lieu of notice remains. 36 The manner in which the employee voices her
criticism of her manager is relevant. If the criticism is disrespectful in tone or language or is
otherwise irreconcilable with continued employment then the employee’s actions may give rise to
cause for immediate dismissal regardless of whether the complaints are justified. 37 The following
cases examine the extent to which it may be possible for a single act of insubordination, in the form
of a disrespectful letter or email, to constitute cause for termination.
In the case of Van Der Meij v. Victoria Immigration and Refugee Centre Society (“Van Der Meij”), 38
the employer maintained that the plaintiff had resigned from her employment, or in the alternative,
she was terminated for just cause as a result of “insubordination, breach of trust, loss of confidence
and insolence.” The allegations against the plaintiff for cause were that: 1) she engaged in conduct
of insubordination and defiance of her supervisor’s instructions during a meeting with the
Executive Director when he disagreed with her about how to deal with an employee of the
organization, and 2) she compromised the organization’s confidence in her as an employee when
she wrote a letter to the Board of Directors (“BOD”) that was disrespectful in tone, and alleged the
Executive Director was belligerent and combative towards her. The facts were that this letter to the
BOD was sent after this allegedly heated meeting with the Executive Director, immediately after
which the plaintiff had gone on sick leave.
In this letter addressed to the BOD and the Executive Director, Mr. Carlos Gaete, the plaintiff set out
the difficulties she was having in the workplace that she believed had caused her illness. She also
advised the BOD that the problems leading to her illness involved funding, consistency in leadership
of the organization, and ethical standards. In conclusion, Ms. Van Der Meij’s letter stated:
I feel that I have been compromised in every regard and cannot function in the
current climate. My workload is far beyond anything anyone can handle, my
position as coordinator has been compromised by Carlos’ unilateral actions that he
has kept secret from me, I can no longer take responsibility for the work of others
in the programme since my hands have been tied in dealing with it, Carlos has
become irate with me, his stated intention to violate a client’s right to
confidentiality, this in turn compromising the confidence I had built with my
client, and moreover he has shown a cold and uncaring disregard for my health. 39
Ms. Van Der Meij made the argument that the letter may have been a reason for terminating her
employment but it did not constitute cause for dismissal without notice. The employer argued that
it justified termination for cause for the following reasons: the letter was an attempt to undermine
Mr. Gaete’s position with the BOD; Ms. Van Der Meij did not first bring these concerns to
Mr. Gaete’s attention or give him an opportunity to address her complaints and improve their
relationship before writing to the BOD; and the plaintiff had never apologized for this letter or
retracted any of her stated criticisms.
On the question of whether the Society had just cause to summarily dismiss the plaintiff from
employment for the serious complaints she had made against Mr. Gaete in her letter, the court
agreed with the employer that “whether or not Ms. Van Der Meij’s complaints about Mr. Gaete
36
Van Der Meij, supra at para. 61.
37
Ibid.
38
[2008] B.C.J. No. 1374, 2008 BCSC 954.
39
Ibid. at para. 31.
13.1.8
were accurate or justified, … her decision to send the September 25th letter to the board of directors,
without first attempting to resolve the problems she identified with Mr. Gaete directly, effectively
destroyed the employment relationship” as Mr. Gaete could no longer work with someone who
had no respect for his management abilities, his character, and his ethical standards. 40 By expressing
extreme unhappiness in the workplace and essentially stating that Mr. Gaete rendered it impossible
for her to do her job properly, Ms. Van Der Meij was essentially forcing the BOD to make a choice
between retaining Mr. Gaete as Executive Director or Ms. Van Der Meij as the Settlement
Coordinator because the letter made it very clear that they could no longer work together.
As a result, the court concluded the letter gave rise to just cause for Ms. Van Der Meij’s immediate
dismissal. It was “inaccurate and exaggerated, disrespectful and inflammatory in tone and
language,” and both the content of the letter and the manner in which Ms. Van Der Meij brought
her complaints to the attention of the BOD “constituted a fundamental breach of the trust
relationship between her and Mr. Gaete.”
In another decision involving an “inflammatory and disrespectful letter,” the case of Chen v. Sable
Fish Canada Inc. (“Chen”) 41 has some similarities to the case of Van Der Meij in that here, as in
Van Der Meij, an employee went over the head of his immediate supervisor and sent a letter critical
of that supervisor to the executive, Board of Directors, and shareholders of the company. In this
case, the plaintiff was a manager who appeared unproductive, disengaged and seemingly depressed
to his employer, and was verbally reprimanded on several occasions for his poor work performance.
After the company let five employees go, in which the plaintiff was not one, Mr. Chen sent a letter
to 40 recipients, including the defendant’s shareholders, that attacked the defendant and its
management. The court identified the following content of the letter to be inflammatory and
disrespectful in tone:
1. Over spending is a serious threat to the survival of the company—your
investment and our job.
2. This company used to be a very pleasant work place.
3. There is favoritism going on in the company.
4. The management of the company is disastrous.
5. This company punishes people who produced fish and reward people who have
been wasting your money. It will cause serious consequence.
6. Is this the way you want your company managed? On the road towards
failure, the company is at a no-return point. 42
The court had no trouble finding that Mr. Chen sent out the letter “in blind faith and hope that it
may reach some shareholders without regard to who else may receive the letter and without any
regard to the harm it may cause the company if others received the letter.” 43 His letter was clearly
an attempt, in part, to embarrass both management and the Board of Directors to the shareholders,
and as a result, amounted to cause for termination.
40
Ibid. at paras. 62 and 72
41
2010 BCSC 444 (“Chen”).
42
Ibid. at para. 12.
43
Ibid. at para. 19.
13.1.9
A third case involving an ill-advised letter sent by the plaintiff to his employer is found in the case
of Fennel v. Kelowna Yacht Club (“Fennel”). 44 What is interesting in this case was the court’s
determination that the employer was justified in terminating the plaintiff on the basis of an email
that was only five lines in length. (This is in contrast to the disrespectful letter in Van Der Meij,
which was comprehensive and lengthy in its accusations and complaints against her supervisor.)
In this case, Mr. Fennel was the Moorage Manager at a Yacht Club whose operations were
controlled by a Board of Directors. Mr. Fennel, whose responsibilities included ensuing the
moorage regulation and moorage agreements at the Club were complied with, reported to the Yacht
Club’s General Manager, Mr. Kay. The email that the Yacht Club relied upon for the summary
termination of Mr. Fennel’s employment was a result of a discussion that had occurred between
Mr. Fennel and the Executive Director and Chair of the Yacht Club, Mr. Smith, just prior to the
five line email being sent.
The evidence was that Mr. Smith, after a day of boating, had returned to the Club and become
concerned by non-members milling around the main gate and the possibility of their slipping onto
the docks when members opened it. He understood that Mr. Fennel had arranged for a
commissionaire to guard the gate, but was unable to locate a commissionaire. As a result, Mr. Smith
telephoned Mr. Fennel at home and left a polite voice mail messages saying he was unable to locate
security. Mr. Fennel and Mr. Smith then spoke on the phone shortly after, and Mr. Fennel offered
to attend at the Club, which he did.
In the meantime, Mr. Smith located the commissionaire, so that when Mr. Fennel arrived at the Club,
he observed the proper security at the gate and made the erroneous assumption that there had been no
problem previously. Mr. Fennel then wrote the following email at 10:33pm that same night which he
sent to the General Manager of the Club, and all of the Club’s Directors, except Mr. Smith:
Subject: Professionalism
I do not need drunken phone calls from the Commodore at 9:35 at night telling me
I’m not doing my job.
I do not need to be micro managed down to the KYC at 9:35 at night by a
drunken Commodore to be ordered to do security at the gate when there are 3
Commissionaires on duty doing their jobs properly.
Brent Fennel,
Moorage Manger, KYC (sic) 45
On the question of whether or not this email constituted just cause for Mr. Fennel’s immediate
dismissal, the court concluded that the plaintiff’s misconduct was so serious that “a reasonable
employer could not be expected to overlook it.” 46 First, the email was inaccurate with regard to the
security situation at the Club that evening and the content of the telephone conversation, and was
either inaccurate or exaggerated about Mr. Smith’s state of sobriety. Its language and tone were
pejorative, inflammatory, insubordinate, insolent, and disrespectful to the CEO and Board Chair of
Mr. Fennel’s employer. 47
44
2012 BCPC 0545 (“Fennel”).
45
Ibid. at para. 16.
46
Ibid. at para. 36.
47
Ibid. at para. 37.
13.1.10
Second, the email did not amount to “a bona fide complaint requiring the Club to investigate and
provide due process”; instead, the email “was an angry outburst.” 48 A bona fide complaint would
have described the conduct complained of in detail and in a factual manner. The court made this
comment:
Mr. Fennel was not seeking a solution to the problem of receiving unwanted after
hours calls. He was not seeking a solution that would permit him to maintain a
working relationship with the Club’s CEO. Instead, his sole motive in sending the
email was to have Mr. Smith, whose failure to enforce regulations upset him,
punished for a ‘transgression’. 49
Similarly to Van Der Meij, Mr. Fennel’s misconduct in writing the email about his CEO was
rendered more serious by his failure to follow the appropriate channels and bring the matter to the
attention of his supervisor, the General Manager, or to address it directly with Mr. Smith. 50 While
it is arguable whether this short five line email made it clear that Mr. Fennel intended to make the
Board choose between himself and Mr. Smith, the court, in citing to both Van Der Meij and Chen,
was satisfied that the content, tone and manner in which Mr. Fennel communicated with the Club’s
Board destroyed the employment relationship, were irreconcilable with his continued employment,
and made it impossible for Mr. Fennel and his CEO to continue working together. 51
The case of Grewal v. Khalsa Credit Union (“Grewal”) 52 also involves an insubordinate and
disrespectful letter to the employer. However, the letter, as opposed to having been written by the
plaintiff herself, was drafted and sent to the employer by her legal counsel. Again, this case focused
on the impact of the disrespectful and inflammatory letter on the employer—did the letter
irreparably harm the relationship between employer and employee such that summary dismissal
was the only conceivable outcome?
Here, the “sorry history” of the plaintiff and the employer Credit Union related mostly to the
development of an unhappy work relationship between Ms. Grewal and the Chief Executive
Officer of the Credit Union as it was admitted there was “discontent on both sides.” 53 On
numerous occasions, the CEO criticized Ms. Grewal for insubordination and for behaving in an
unprofessional manner. In turn, Ms. Grewal complained that the Chief Executive Officer invaded
her privacy, for example, by reviewing phone bills and by asking employees to monitor her and to
collect information on her in an alleged effort to build a case for removing her from her position.
During Ms. Grewal’s employment, an issue arose concerning a home mortgage she obtained from
the Credit Union. She was asked to attend a meeting to discuss issues raised in the mortgage
renewal matter and other ongoing concerns. The day after the meeting, a letter from the plaintiff’s
lawyer was hand-delivered to the Credit Union. The letter alleged serious unwarranted invasions of
Ms. Grewal’s privacy, complained of statements in relation to the mortgage matter and demanded a
wide ranging retraction and apology. The letter also threatened action in the event an apology was
not provided. The letter, which was copied to the Credit Union Board of Directors and to the
Deputy Superintendent of Credit Unions and Trusts, stated, in part:
48
Ibid. at para. 39.
49
Ibid. at para. 40.
50
Ibid. at para. 42.
51
Ibid. at para. 46.
52
[2012] B.C.J. No. 257, 2012 BCCA 56, aff’g [2011] B.C.J. No. 925, 2011 BCSC 638 (“Grewal”).
53
Grewal, supra at para. 4.
13.1.11
We demand that within 21 days from the date of this letter you issue a written
apology to Mrs. Grewal acknowledging that your actions in going to the board
of directors, testifying on oath at the FICOM hearing, levelling this untrue
accusation of a mortgage scandal at her and repeatedly making baseless allegations
of performance failures in her job as a manager were done by you in bad faith
with the intent of injuring Mrs. Grewal and her reputation. You must promise to
refrain from any and all such conduct in the future. Clearly, you will need to
obtain legal advice in resolving this very serious matter. As Mrs. Grewal’s
solicitors we will want to review the apology letter in order to ensure that it
addresses all of our client’s concerns regarding her mistreatment at your hands.
This letter must be addressed to our client and copies provided to the board of
directors of the credit union and to Ms. Jay Mitchell, Deputy Superintendent of
Credit Unions and Trusts.
In the event that we receive a timely apology which is satisfactory to our client we
have instructions to release you and the credit union from liability for this
tortuous conduct. If you choose not to apologize we will commence an action
against you and the credit union seeking compensatory and punitive damages. 54
The Credit Union responded to this letter by denying the various allegations made by the plaintiff,
and stated, in part: “Ms. Grewal’s insubordination, refusal to follow policies and procedures and
other improper conduct, demonstrates she has acted in a manner that is incompatible with
continued employment with the credit union. Nonetheless, the credit union has not terminated
Ms. Grewal. The credit union takes the position that the foregoing incidents of Ms. Grewal’s
insubordination, refusal to follow policies and procedures and other improper conduct,
demonstrates she has acted in a manner that is incompatible with continued employment with the
credit union that Ms. Grewal herself has thereby severed the employment relationship and it is
clearly her intention not to return.” 55 After this response, Ms. Grewal did not return to work at the
Credit Union and commenced her action for damages for wrongful dismissal.
On the question of whether the plaintiff had resigned from her employment with the delivery of the
impugned letter, the trial judge found that the letter did not constitute an ultimatum to the
employer to “apologize or else” and did not evince an intention on the part of Ms. Grewal to resign
her employment. On the question of whether the employer had just cause to terminate the
plaintiff, the trial judge concluded that prior to the delivery of the letter, Ms. Grewal’s conduct had
not yet reached the point where the Credit Union had cause to dismiss her. However, the letter
itself “tipped the balance”: a finding that the Court of Appeal affirmed. 56 Clearly the language of
the letter was “disrespectful and inflammatory,” the accusations were “serious and covered most
aspects of her working relationship,” and the contents were not substantiated by the facts. 57
Therefore, there was no reason to question the conclusion that the letter was a “culminating
incident justifying termination for cause.” 58 In the totality of the circumstances, the letter
constituted just cause for dismissal.
54
See para. 60 of the trial decision of Grewal, supra.
55
See para. 64 of the trial decision of Grewal.
56
Ibid. at para. 14.
57
Ibid. at para. 10; see paras. 105-6 of the trial decision of Grewal.
58
Ibid. at para. 14.
13.1.12
IV. Vile Insult
The case of Wise v. Broadway Properties Ltd. (“Wise”) 59 provides a good example of a single act of
insolence constituting such grave misconduct that the employer was justified in immediately
terminating the plaintiff’s employment. In this case, Mr. Wise, a resident caretaker of an apartment
block threatened to sue his employer for the value of unpaid work and directed a particularly
offensive insult at the principal of his employer, Broadway Properties. In “a state of exasperation”
after attempting to discuss with the owner, Mr. Roadburg, his belief that he was owed
compensation for performing property management duties, Mr. Wise wrote a five-page letter
addressed to Mr. Roadburg “venting his frustration at the perceived injustice of his unpaid work.” 60
Mr. Wise did not send the letter at this time, but he kept it.
Some time passed, and Mr. Wise had a serious disagreement with a tenant. Mr. Wise felt that
Broadway unfairly took the tenant’s side in the dispute, and so he wrote another letter directed at
Mr. Roadburg, and regrettably enclosed the first letter written approximately 1.5 years earlier as
well. In closing the second letter, Mr. Wise wrote:
A Civil action appears to be the only way in which I can get some closure out of
being USED by Broadway Properties in the case of the towels, AND in the case of
not being recompensed for acting as PROPERTY MANAGER since April of
1992 at 1875 Bellevue Ave, in West Vancouver. Let your conscience and fairness
be your guide sir. 61
Broadway took this to be a threat to sue and a repudiation of the employment relationship;
however, the trial judge said that by itself, this did not provide sufficient cause for dismissal. What
constituted just cause was the threat to sue, along with an insult contained in the first letter enclosed
along with the second one. The offensive statements in the first letter were as follows:
You gave me a building management and subsequently a PROPERTY
MANAGEMENT job, April of 1992, here at Village Towers. I have undoubtedly
fulfilled your expectations in this regard, and I do not expect to be treated as the
unfortunate Jews were treated when impressed into working without pay for
Mercedes Benz, Volkswagen and Siemens during the Second World War.
Mr. Roadburg, a Jewish man then in his 80s was deeply offended by the comparison Mr. Wise had
made, and the trial judge accepted that so far as Mr. Roadburg was concerned, “the ill-advised
comparison drawn by Mr. Wise between his treatment by Mr. Roadburg and the treatment of the
Jews as forced labourers irretrievably destroyed any chance of a workable relationship between
Mr. Roadburg and Mr. Wise.” 62 The Court of Appeal affirmed the trial judge’s finding that while
the threatened lawsuit may not have been enough in and of itself to constitute cause for summary
dismissal, “the combination in this case of the threat to sue and the unfortunate reference to the
Jews and their use as forced labour, in the circumstances known to both parties at the time, and in
the particular circumstances of these individuals” did constitute cause for summary dismissal. 63
59
2005 BCCA 546, aff’g (4 February 2005), Vancouver S012489 (B.C.S.C.).
60
Ibid. at para. 12.
61
Ibid. at para. 13.
62
Ibid. at para. 17; see para. 55 of the trial decision.
63
Ibid. at para. 18; see para. 57 of the trial decision.
13.1.13
The Court of Appeal even went so far to say that in its view “the decision [could] be upheld solely
on the finding in connection with the insult, without reference to the threat, if that is what it was.” 64
It is clear from the most recent case authority that the range of conduct that can constitute
insubordination and insolence is quite extensive, and that generally, while one incident of
insubordination or unprofessional and disrespectful behaviour will not normally constitute cause,
there are a number of circumstances as described above where the court had no hesitation in
defining a single act as gross misconduct justifying summary dismissal. While it is a difficult and
challenging task for employers to determine whether they can rely on a single insolent or
insubordinate act to justify immediate termination of an employee, what is clear is that the key
assessment required is whether the employee, through their action(s), has breached an essential
condition of the contract of employment. In extraordinary circumstances, an express and clear
warning about the employee’s performance may not be necessary if there is no doubt that the
employee’s misconduct has completely fractured and irreparably damaged the employment
relationship to its very root.
64
Ibid. at para. 20.