It’s often colloquially referred to as “sticking it to the boss”. You know…the type of behaviour that can be gleaned from the plotlines of a TV show like The Office or a movie like Office Space. It usually happens when an employer gives an employee a task, but the employee flatly refuses to do it, whether it’s done sheepishly, offhandedly, or defiantly. It’s actually called “insubordination”. This article explains exactly what insubordination is, the ways that it may rear its ugly head, and provides a helpful guide which may assist employers in how to deal with this problematic issue. This article is intended for general information and must not be relied as legal advice.

What is workplace insubordination?

Insubordination occurs in a workplace when a person intentionally disobeys reasonable and lawful orders given by an employer. This type of refusal effectively undermines both the level of respect given to the employer, the employer’s ability to manage its employees, and its reputation among its employees.

What does insubordination look like in the workplace?

1. Refusing to complete a task

An employee’s refusal to complete reasonable and lawful tasks that are within the terms of their contract or role could constitute insubordination. However, if an employee refuses to complete a task, it is possible for the employer to reach a compromise with the employee by finding out the reasons why the task was refused. Bear in mind that employees can refuse to do any illegal or unethical activities, and it will not be considered insubordinate behaviour.

2. Pulling a no-show

The schedule of the employee is often outlined initially in the terms of their employment, which is usually agreed to as part of the contract of work or employment agreement. Failure to show up for the required hours at the required time may be considered insubordinate behaviour.

3. Leaving early without informing

Employers have a duty of care towards their employees to provide a safe work environment, so it is important for employers to have an awareness of the whereabouts of their employees during their working hours. Likewise, employees who have been contracted to work specific hours may be in breach of their agreement or contract if they leave earlier than the work schedule allows, without notification to the employer.

4. Disrespecting authority

Disrespect in the workplace may arise from outwardly expressed behaviour, such as when an employee raises a voice at, mocks, or uses profanities or vulgar language towards authority figures. It may also arise from less obvious behaviour, such as rolling eyes, muttering under the breath, huffing, sighing, tutting, tsking, or using other sounds as interjections. 

This is the type of behaviour which may set the standards with which others present may feel the employer should be treated. This can effectively undermine the employer’s respectability and make their sense of authority appear questionable or non-existent. This is why it is important for employers to clearly set out the parameters of the type of conduct which could be considered a breach of the employment contract, as well as the potential consequences for such conduct.

5. Sabotaging the employer’s initiatives

Sabotage relates to the employee doing or not doing an act which has the effect of either undermining an employer’s ability to perform or act, weaken the employer’s position, or destroy the employer’s property or chance to do something. For example, an employee’s simple refusal to submit to a deadline may affect the employer’s contract with a client. This could result in a negative outcome for the contractual relationship between the employer, as well as potentially detrimentally affecting the employer’s reputation in the industry.

How should employers handle workplace insubordination?

1. Identify and address improper conduct when it occurs

The employer should identify address workplace insubordination when it occurs by speaking to the employee, rather than merely making a mental or physical note of it to be used against the employee at a later date. 

2. Document improper conduct

It is important for the employer to have a written record which would include the location, people involved, circumstances, and date.

3. Have an informal chat with the employee

An initial talk with an employee about insubordinate behaviour should occur as soon as possible. The employer should offer and allow the employee to bring a support person, who should be there for moral support only, to the informal meeting. It is better for the employer to remain neutral, not become emotional, and discuss the objective facts of the situation. The employer and employee should keep a record of what was discussed between them.

4. Commence formal performance management

If that informal chat didn’t work, then the employer may prefer to have a separate, more formal discussion with the employee to agree on performance management or a performance improvement plan. The agreement or plan should address the employer’s concerns of the employee’s conduct, determine the type of conduct that the employee should display, and determine how the employee can improve their conduct. 

A timetable of dates for review of progress should be included. If the employer does not use a set template, there are a number of free performance agreements and performance plan templates available at the Fair Work Ombudsman’s website.

5. Issue a formal warning.

If performance management didn’t pan out the way you’d hoped, a formal warning letter can be issued to the employee. The contents of this letter should provide a clear explanation of the employee’s offending conduct or performance, determine what the employer’s expectations are for the employee’s conduct to change, and clearly set out the consequences that the employee is likely to face if there is no improvement. 

Once the formal warning has been given to the employee, a reasonable amount of time should be given so that the employee can show that their conduct has improved. While there are no rules in relation to the number of warnings that are required, or how much time the employee should be given in order to show improvement, it should be done in accordance with the employment contract or agreement, as well as any workplace policies which bind both the employer and employee. If the employer or employee is uncertain about this, it is important to seek legal advice.

6. Consider termination options.

Notification of termination:

When the prospect of termination arises, employers must be very careful because there may be a required period of notice before termination is possible. It is important to check the National Employment Standards and the employment contract or agreement in relation to the minimum periods which could apply.

Summary dismissal:

Alternatively, the employer may determine that the employee’s employment should be terminated immediately without notice, which is called “summary dismissal”. Summary dismissal can only be justified when an employee’s misconduct was so serious that it would not be reasonable for the employee to continue being employed. 

Serious misconduct is defined in the Fair Work Regulations 2009 (Cth) pursuant to reg 1.07, as having its “ordinary meaning”. This means misconduct which is serious. This has a very wide meaning, so the legislation has provided examples of serious misconduct; however, it is not limited to the following:

• Wilful or deliberate behaviour which is inconsistent with continuing the employment contract.
• Conduct that causes serious and imminent risk to the health or safety of a person, reputation, viability or profitability of the employer’s business.
• Fraud.
• Theft.
• Assault.
• Sexual harassment.
• The employee being intoxicated at work.
• The employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s employment contract.

Because it is a tricky to determine if summary dismissal is justified and reasonable, it is important to seek legal advice if the employer considers this option because the employee may make a claim of unfair dismissal against the employer. If the court determines that the employer unfairly dismissed the employee, the employer may be required to pay compensation or reinstate the employee to their former position.

Conclusion

Workplace insubordination is something that employers can often face, especially if they are operating a small business. Employers place a great deal of trust and delegate important tasks to their employees, so it is important to nip any insubordination in the bud, lest it spiral out of control and become not only a workplace-wide problem, but a legal problem. If your business is dealing with Insubordination and you are contemplating terminating your employee Pannu Lawyers can provide you advice to ensure that risks of unfair dismissal are minimised. Pannu Lawyers is based in Blacktown and Dandenong. For expert advise on Employment Law matters, please contact 02 9920 1787 or 1300 VAKEEL.