There's an old Japanese saying that quite frankly applies equally to bosses as it seems to apply for too many lawyers who appear before judges:

"If your boss says the passing cow is white, you must agree."

Few topics are more fun for employment lawyers than insolence.

Especially for me, self-employed and with no boss to worry about. I can gaze upon this topic with a worry-free smile on my face, with no real-life examples to stress me out or to cause the type of emotional breakdown that usually causes insolence.

The contractual relationship between an employer and an employee almost always involves taking instructions from a person designated by the employer, if not the employer himself, who is known by the affectionate title of "boss", as in "The Boss".

insolenceThe boss bosses you around and you accept this in exchange for money (your wages or salary). But "bossing" is an art on which volumes have been written and because of which, some cartoonists are now very wealthy.

Bottom line: it is not easy bossing or being bossed.

Sometimes, due mostly to poor hiring or bossing, an employee cracks and says or does something contemptuous towards her employer, The Boss.

Often, it's a mere outbreak of anger but unfortunately for the employee, he/she has no right to be disrespectful to the employer, even if it is "merely" an anger management problem..

In Mellquist v. Lake of The Rivers, insolence has been defined as:

"... haughty and contemptuous or brutal behaviour language; lacking usual or proper respect for rank or position; presumptuously disrespectful or familiar towards equals or superiors".

Insolence at the workplace crosses the line. Unless the employment contracts specifically says that you may be insolent towards your boss (!) - insolence not tolerated in employment contracts. Listening and acting on your boss's instructions is why you are paid money; it is a material term of your employment contract. Insulting him/her is not.

Generally speaking, you cannot be fired for a single incident, but there are exceptions for the more dramatic or sensational instances of insolence, where a Court can find the insolence to run so deep as to effectively render the wounded employer-employee relationship unsalvageable.

In Donovan v. New Brunswick Publishing Co., a 1996 New Brunswick case, a staff writer with 36 years tenure was fired for telling a client of his employer-newspaper to "shove it". The client in question was a professional hockey team, the St. John’s Flames.

"I am not convinced that N.B. Publishing had legal cause to terminate the employment of Mr. Donovan. A single instance of insolence did not justify dismissal of Mr. Donovan from his employment."

In Henry v. Foxco Ltd. (2004, New Brunswick), Gerald Henry had been asked by his employer to remove decals from vans. His boss, Peter Graham, approached him in the lot and they had this conversation:

Graham - That better be your second one (van).
Henry - No, its the first.
Graham - Jesus Christ, you've been on it all afternoon.
Henry - No, I've been out back.
Graham - It would only take me 20 minutes. Do the one outside.
Henry - What's your fucking problem? You've been on my fucking case all day and I'm fucking sick and tired of it.
Graham - If you don't like it - quit.
Henry - I'm not going to quit. You want to fire me, go ahead and fire me.
Graham - Alright, you're fired.

Henry brought an unjust dismissal case to the court.

He won.

The court noted that usually more than one incident of insolence was required for dismissal:

"When looking at the diverse categories of misconduct, some are inherently or intuitively more serious than others. The weakest of all is insolence and more so if characterized as an isolated incident.... I cannot accept that these circumstances are properly classified as misconduct that warrants summary dismissal."

InsolenceMore importantly, the Court stated:

"A single incident of insolence will justify summary dismissal of an employee in one of three circumstances: (1) the employee and superior are no longer capable of maintaining a working relationship; (2) the incident undermined the supervisor’s credibility in the workplace and, correlatively, his or her ability to supervise effectively; or (3) that because of the incident the employer suffered a material financial loss, a loss of reputation or its business interests were seriously prejudiced. I confess that these three possibilities do not constitute discrete tests to be applied independently of one another. They may overlap and other exceptional circumstances may exist."

But in Codner v. Joint Construction Ltd., the Newfoundland Supreme Court accepted a claim for unjust dismissal even though there had been a single incident of insolence.

Jerome Codner had erupted at the owner of the company he worked for, and called him a "fucking liar".

The case is distinguishable in that the judge did rely on other evidence of the employee’s alleged attitude, but nonetheless condoned the dismissal suggesting that it was "destructive of the employment relationship".

In Meli v. Chemical Resins Corp., Peter Meli "disliked and even came to despise his new supervisor, Stephen Dixon", telling the receptionist that he would "punch Dixon’s head in". Meli was warned by Dixon to clean up his behaviour but soon thereafter, he called Dixon a "fucking asshole" and that he "wasn't going to take this shit", he "didn't care about his job" and "fuck off". He was terminated and the dismissal upheld by the Ontario Court of Justice relying on this statement of the law:

"If an employee has been guilty of serious misconduct, habitual neglect of duty, incompetence, or conduct incompatible with his duties, or prejudicial to the employer's business or if he has been guilty of wilful disobedience to the employer's orders in a matter of substance, the law recognizes the employer's right summarily to dismiss the delinquent employee."

The following examples provide an indication for both employers and employees as to what circumstances of insolence might constitute grounds for immediate dismissal.

In Beja v. Titan Wheel International Ltd., the plaintiff had been working for the defendant for some time when a new boss arrived on the scene, a Mr. Russell Ash. The two gentlemen did not get along. "On the cover sheet of a fax sent by Beja to Ash, his name was incorrectly printed as Ass rather than Ash. I am not satisfied on the evidence that the misprint was intentional but even if it was, it does not in my view amount to such a degree of insolence as to constitute by itself cause for dismissal."

In Jongsma v. Standard Motors, Ernest Jasma was the defendant's service manager.  At a meeting with GM dealers, the Plaintiff:

"... drank too much. One day he said too much. In particular, he said, during one of the meetings, that "Dealers know nothing about the service department and should stay out of the service department thereby doing everyone a favour". Two dealers who were present at the meeting testified that it was an irresponsible, rude statement which offended many. Jim (the son of the defendant’s owner), although he said nothing to Jongsma at the time, was furious and, I believe embarrassed."

Jonsma was terminated on his first day back at work. The court found that he had been wrongfully dismissed; that his outburst had been "blown out of all proportion in the mind of a young businessman who felt that he suffered in the eyes of his peers by appearing as one who couldn't control, or didn't have the loyalty of, his staff. I note that there was no evidence of any other occasion when Jongsma acted so inappropriately."

In Barbe v. 625639 Alberta Ltd., the Alberta Provincial Court was faced with an employee that had defiantly told her boss: "say the word and I'll pack up my stuff and I'm out of here" and "What's the matter? I thought you were the manager. You don't have the fucking balls to do it?" She got her wish and was fired on the spot.

The Court opined that she ought not to have been; that a cooling off period might have been a more appropriate remedy under the circumstances.

"There is no question that the conduct of the Plaintiff was outrageous. I do not think, however, that it would have undermined the management structure of the business. At the end of the episode, it was clearly the conduct of the employee, not the management, that to all observing would be classed as incredibly stupid.... It was open to the employer to discipline the employee by suspending her.  I have weighed the satisfactory performance of the employee over the years against this single episode. Had there been evidence of other shortcomings, summary dismissal would have been justified. In this case, however, because the episode is an isolated instance,  the Defendant has fallen short of establishing the threshold of just cause."

Some words of wisdom ...

Some words of wisdom from one employment law lawyer: having a good personnel manager will go a long way towards reducing the disruption of an episode of insolence at the workplace.

If in doubt about a prospective employee in regards to their ability to manage the stresses of the particular job, do not hire.

Sometimes, though, and employee slips through the assessment process with, or develops emotional or mental health issues. If an act of insolence is completely out of character for the employee, or where there is a suspicion that it may have been provoked by the supervisor, it is best to discipline rather than dismiss.

Of course, some acts of insolence are simply horrible or occur in front of customers or include implied or real threats of violence. In those cases, it may rupture and render irretrievable the employment contract.

You would think that insolence would suffice in and of itself to terminate an employee. However as is set out above, the Courts expect the employer to exercise the wisdom of Solomon in dealing with insolence, probably recognizing that decades of an employee's tenure ought not to be sacrificed at the altar of a perfect work record.

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