January 19th, 2017
On September 8, 2016, the Ontario Divisional Court overturned a decision that an employer had cause to terminate an employee for insubordination. This case, Caskanette v. Bong Keun Dentistry Professional Corporation involved a receptionist in a dental office suing her employer for wrongful dismissal.
In January 2013, the employer acquired the dental practice, and its employees. By May of 2013, conflicts had developed between the employed receptionist and the new ownership.
The receptionist’s longstanding practice was not to schedule patients on Fridays during the summer, and to take off Fridays before long weekends. The new employer distrusted the receptionist because patients were not being booked on Fridays and so staged a “secret shopper” call to schedule an appointment for Friday morning. The receptionist attended for work on Friday morning, but received a phone call cancelling the only appointment for the day after which she left the office. The office manager phoned and left a message after the receptionist had left, instructing her to return to work immediately. The receptionist did not return to work until after the weekend, at which time she was dismissed.
The trial judge decided the employee had been grossly insubordinate, there was no duty to warn, and “no need to decide whether or not progressive discipline is required”.
Madam Justice Mitchell of the Divisional Court overturned the trial decision, and noted that there is usually a duty to warn an employee; and, a duty to apply progressive discipline. Justice Mitchell also noted that in some cases of gross insubordination, “an employer must provide…an opportunity to atone”.
There can be temptation to act first when faced with gross insubordination, with the offensive nature of that type of behaviour to employers. However, this case indicates that even gross insubordination may not justify an immediate dismissal. This case serves as a reminder to both employees and employers that it is important to thoughtfully consider the appropriate steps to take before any dismissal and consider seeking legal advice before acting.