Termination for Insubordination

Dan McCarthy · May 2001

I was a witness for our company at an unemployment compensation appeals hearing yesterday. At the hearing, we argued that the employee had been dismissed for "insubordination." The claimant argued that we had not followed progressive disciplinary procedures. We in fact had initiated the procedure - he had received a verbal warning that was documented, but from there we moved to termination when he willfully and knowingly violated his instructions the very next day after being warned. The problem is that he was not terminated until a week later. In insubordination cases, do we still have to adhere to progressive disciplinary procedures?

Tricia · May 2001

It has been my experience, that you may terminate an employee for insubordination, especially if it is outlined in your employee manual as a terminable offense. However, waiting a week to do so can cause problems. The question would be why did you wait to terminate this employee when you could have done it on the spot? This one may be tricky. I would not sit on this issue again in the future. If I were you, I would be sure to take action immediately.

Gillian · May 2001

When you wrote "willingly and knowingly" refusing instructions that sounds like insubordination, however, insubordination is sometimes used loosely. Sometimes a supervisor will call an employee insubordinate when they merely disagree with a work instruction. I don't think that this is insubordination but a disagreement. Whether a discharge is appropriate depends on what the insubordination was all about. If it was a violation of a direct order which was a sensible one, then discharge is probably appropiate. The same thing is the case regarding the use of progressive discipline. If the "insubordination" is a serious issue, then skipping the steps is appropriate. If not, it isn't. You also have a problem with the delay of a week. To an outsider, that may look like the issue wasn't that big of an issue or that it was condoned.

(BJ) · May 2001

You should look to your policy and past practices. If the policy does not indicate that insubordination is a terminal offense, then past practice will determine the protocol.

System · May 2001

"Insubordination" does get used loosely. I recall that many arbitrators have specific criteria for determining when the charge of "insubordination" is proper: it includes a direct order, most likely in writing from someone in th eemplyee's chain of command, that the employee is willfully refusing to obey and the consequences are specifically spelled out as discharge for that refusal; compliance with the order will not place the health or safety in jeopardy or require the employee to commit an illegal act. The employee is give a reasonable time opportunity to comply with the order and doesn't. This is most liely used in a single incident of such conduct rather than repeated incidents of non-compliant behavior. Of course, sometimes, the employee's contumacious and/or rude behavior toward a supervisor when repeated lead to charges of insubordination even though the criteria has not been met. It's more likely in the latter that progressive discipline will be used, while saving the "one strike, you're out" situation for the more critical or important instruction or order. As some one else noted, past practice of what your company does in forming "insubordination" charges, is critical, even more so, I think than any stated policy.

Richard S · May 2001

I usually try and include in conversations with the individual "Are you refusing to do what I am asking you to do?" If it is a behavior problem in general I would point out to that person that I am asking him/her to follow those instructions and then ask them " are you going to follow those instuctions" if they respond "no" then I refer back to " are you refusing to do what I am asking you to do". That should give you the buffer that you need.

CuriousG · May 2001

Richard's "magic bullet" words are good, but remember, you need to confirm the employee understands the consequences for their refusal. The interaction should go something like this:
Supervisor: "Are you refusing to do what I have instructed you to do?"
Employee: "Yes"
Supervisor : "Do you understand that your refusal will result in disciplinary action, up to and possibly including termination of your employment? Now, again, I ask you-are you refusing to do what I am instructing you to do?"

Margaret Morford · May 2001

My "magic bullet" language is a bit different so that it saves the employee if possible and makes the company look better if sued. Supervisors should be trained to handle this before it happens. When an employee refuses to do what he/she is asked to do (insubordination), the supervisor should say, "John, I have just asked you to do ____________ and you have refused. This is insubordination and is a fireable offense. Now, understanding that this is what we are talking about, I am going to tell you again that I want you to do _______________." Warn the employee and make them realize that they are about to get themselves fired. Give them some room to step back. Almost all employees will then agree to do what you have asked and the supervisor maintains his/her authority. It also will make other employees think before they refuse to do what their supervisor asks.

In the few cases where the employee still refuses to do what he/she is asked, train your supervisors not to fire on the spot. Tell them to tell the employee, "John, I want you to gather up your things and you are suspended, pending an investigation. Do not return to work until you hear back from me." This gets the insubordinate employee off the premises and gives the supervisor a chance to cool down and consult HR to review the facts. If this is a good employee that is under some sort of stress that the supervisor would like to keep once he/she cools down, the supervisor has created the perfect opportunity to have the employee come back with no loss of authority on the part of the supervisor. The supervisor then calls the employee and says, "I have been advised by HR that I can fire you, but have argued that based on your employment record I want to give you another chance. Report to my office first thing in the morning if you wish to return to work." The employee has had a chance to cool down and must choose to return. The meeting with the supervisor is very short as goes like this, "John, I asked to keep you despite the fact that insubordination is a fireable offense. However, let me be very clear, if you ever do that again, there is no second chance. You will be terminated immediately." The supervisor then comes off looking merciful with no loss of face. If the employee is a bad employee and the supervisor wishes to terminate him/her, the supervisor simply calls the employee at home and informs them that they are terminated. By suspending, you give the supervisor some time to consider what to do and a cool head to do it with, you give the employee a chance to cool down and be remorseful (sometimes with the help of a spouse or significant other who is a home and horrified that they are going to lose their job) and you give HR a chance to look at the facts to insure that it really is insubordination. Hope this helps. Call me if you have any questions at 615-371-8200.

Margaret Morford
theHRedge

tom · May 2001

I agree with Margaret. In cases where there is a terminable offense, you can always state that the employee is suspended pending an investigation by HR.

Uncas · May 2001

I also agree with Margaret on the use of suspension in cases of possible discharge. The term we use is "Suspension for the Purpose of Discharge", and the suspension is usually for a period of three days. This provides for a "cooling off" period and gives time for management review and investigation of the situation. This is also usefull if there is a hearing before an ALJ, since discipline was immediate (ie. suspension), but time for investigation is also provided, to defuse the possible charge of wronful discharge.

Theresa Gegen TX · June 2001

One thing you might want to consider is revising your progressive discipline policy, so that you have some escape language that allows you to skip steps if the violation is serious.

Good Luck

Termination for Insubordination

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