This article was first published by the Law Society of Ireland in July 2018.
The principle that an employee repudiates a contract of service if he wilfully disobeys the lawful and reasonable instructions of his master was established in Brewster v. Burke and the Ministry for Labour [1985 JISLL 98]. That case established that one incident of insubordination can amount to gross misconduct justifying the dismissal of an employee. Section 6(1) of the Unfair Dismissals Act 1997 provides protection to employers who dismiss employees when there are substantial grounds justifying the dismissal. The term insubordination reeks of a past era with a master-servant culture which arguably no longer exists. Having said that there has been a flurry of activity in this space in the past couple of years. Most recently the cases of Castolin v Eutectic Ireland Limited [2017 ILCR UDD1754] and Swissport Ireland v Cakolli [2017 UDD1759] have brought the concept of insubordination into clear focus again.
Case law
In most reasonable instruction cases there is no dispute as to the refusal by an employee to obey an instruction. Instead, cases tend to hinge around employees' justification for that refusal. For example, the Uniphar Limited v. A Worker (2017UDD/1759) case involved a refusal by a driver to carry out a particular “run” because delays in loading were extending his working week. The Labour Court rejected the employee’s justification as the resulting delay was a mere 30 minutes and found the employee’s refusal to be an "over reaction and totally unacceptable ". Similarly, in An Garda Siochana v. A Worker (AD921/2009) a civilian driver refused to complete his duty because as it would have involved overtime. His contract stated that it expected employees to cooperate regarding overtime but did not compel them to work overtime. In the circumstances the Labour Court deemed the disciplinary sanction to be fair and reasonable. In the 2017 case of Employer v Employee ADJ00001385/2016 an employee was required to undertake Garda Vetting for his role which was carried out vetting through a third party to comply with legislative requirements. The Employee refused to complete the necessary paperwork. He insisted on being vetted directly by the Gardaí as he alleged that he had previously been the victim of identity fraud. No evidence was provided to support that allegation. Ultimately the WRC found that summary dismissal was justified.
Employee Defences
It can be difficult to understand how an employee could successfully defend his decision to directly disobey his employer. A number of cases have dealt with that issue. In Zamfir v. Lorien Enterprises Limited t/a LT&Z (UD917/2013) a commis chef refused to obey a supervisor's instruction to clean a bathroom. A heated discussion ensued which resulted in the employee being fired. The Tribunal found fault on both sides. The style of management applied by the supervisor was a reactive one and that there was a lack of HR training. Ultimately, the employee's behaviour was also found to have contributed to the dismissal.
In A Cabin Steward v An Airline Company ADJ-0002402/2016 it was argued by the a member of cabin crew that that the employer had made a request for him to work an additional duty at the end of his shift, rather than issuing him with an instruction. This argument was rejected by the WRC who found that the employee’s refusal to undertake an additional duty was fully understood by the employee who had telephoned his shop steward to take advice at the time. In the more recent Cakolli case an airport based driver was dismissed for his refusal to drive a vehicle which was not taxed or insured. His role required him to drive primarily on airport roads however on occasion he was required to drive on public roads. The employee contacted the Gardaí who confirmed that he needed tax and insurance when driving on public roads. The employee raised concerns with his employer. The employer made no efforts to investigate the employee’s concerns and dismissed him for failure to obey a reasonable instruction.
The Labour Court found that where an employee raises a question as regards the legality of instructions that there is a responsibility upon that employer to properly establish the legal facts. They found that at no stage was the reasonableness of the instruction evaluated by the employer. On that basis they found the dismissal to be unfair and made a substantial award of €50,000 to the Employee. In the Castolin case it was admitted by the employee that he had failed to follow his supervisor’s instructions by prioritising a packing list. As a direct result an order was not ready for shipment and the company lost the order. It was accepted that there had been a failure to follow a reasonable instruction but the Labour Court had concerns regarding the proportionality of the sanction and fair procedures resulting in an award being made.
Guidance
The Cashman v. St. Patrick's Hospital Cork (UD154/2013) case provides useful guidance on the steps an employer should take when disciplining an employee for insubordination. In that case an employee constantly refused to use the staff car park without justification contrary to a direct instruction by the employer to all employees. The Employee persisted and was suspended with pay pending a disciplinary hearing. At that hearing he was warned that continued failure could result in disciplinary action up and to and including dismissal. Ultimately the employee was dismissed.
The Tribunal found in the employer's favour. In doing so they relied on the Brewster case and examined whether the instruction was reasonable, whether fair procedures were applied and the reason for the refusal to follow the instruction. They found that the instruction to park in the staff carpark to be reasonable and that all other staff were complying with this direction. Late in the process there was a suggestion that the employee was unfit to walk to the carpark but medical evidence was not presented to support this argument. Ultimately the Tribunal found that there had been a “persistent failure to obey a lawful and reasonable instruction amounted to a serious sundering of the employment relationship".
To date, there has been a lack of guidance from the courts regarding the concept of what is a reasonable instruction. Cakolli confirms that if an instruction is clearly illegal it should justify a refusal to obey. Looking back in time to Fulham v. Currar Knitware (UD76/1978) the Tribunal indicated that a refusal to carry out an instruction will be viewed more seriously if it should have been obvious to the employee that the refusal would have resulted in an adverse consequence to the employers' business. In Cavanagh v. Dunne Stores (UD820/1994) the Tribunal focused on both the employer and the employee's behaviour and the reality of the situation in determining the reasonableness of the instruction.
Commentary
A review of the case law throws up some interesting facts. In the civil courts judges seem to have taken a stronger stance and offered clearer reasoning for their decisions. Although one instance of insubordination was found to be sufficient to merit a dismissal in the Brewster case many recent cases have only succeeded where there have been multiple instances of insubordination. Although Cashman and Cavanagh provide some guidance there is no clear test to determine what amounts to a reasonable instruction. This area is likely to develop as employees try to justify their failures to comply with their employers’ instructions. Legislation such as the Protected Disclosures Act 2014 is likely to be used as a defence in such cases by employees given that it offers significant protection for whistle-blowers.
