Insolence

Very few employees are secure in their jobs in today's marketplace, which makes for an overall feeling of anxiety. Sometimes, this anxiety can build to such an extent that the employee "melts down". Some people internalize stress becoming physically or emotionally ill. Other employees externalize stress resulting in untoward comments or outbursts at the workplace. In such a case, can the employer dismiss the employee without notice? Let's take a look at some general principles on this issue.

Firstly, I am addressing here the concept of "insolence" within the workplace. Put simply, being insolent usually involved making remarks or exhibiting behavior in the workplace that is clearly offensive and inconsistent with a professional work atmosphere. "Insolence" is sometimes also described as conduct so extreme as to interfere with the safe conduct of the employer's business. In the case of Laird v. Saskatchewan Roughrider Football Club, an equipment manager was found to have been properly dismissed without notice on the grounds of "insolence" because he repeatedly make profane remarks and verbally abused officials, opposing players and head coaches despite being warned not to.

In attempting to determine whether the employer was justified in summarily dismissing an employee on the basis of "insolence", the court will review the employer's responsibility in contributing to the behavior. For example, a manager who was oppressive and a faultfinder has been held to be partially responsible for an employee's outburst made in frustration.

Some cases indicate that a single incident of insolence can be sufficient to amount to just cause. These cases typically involve an employee who attacks the honesty, integrity or authority of a supervisor in front of other employees. In one case, the court held that an employee who called his supervisor a "f_____ liar" was properly fired without notice.

Case law also indicates that repeated occurrences of insolence can amount to just cause for summary dismissal. For example an employee who repeatedly insisted upon receiving instructions in writing and made references to psychiatric testing of his supervisor, was properly dismissed without notice.

Courts will also consider whether an employee's offending remarks are made in the presence of more than one co-worker.

In short, just because an employee is fired without notice for the stated reason of insolence does not mean that the employer will be successful at trial asserting that defence. If you have been dismissed without notice or pay in lieu for the stated reason of insolence, please contact me to review all of the facts and circumstances. Things are often not what they appear on the surface, particularly in employment law.