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Just Cause For Employee With Angry and Rude Outburst
Thomas v Saskatchewan Indian Gaming Authority Inc., 2021 SKCA 164 is a new Saskatchewan Court of Appeal decision upholding a just cause termination for an employee who had an angry and rude outburst with his boss.
This case is interesting because it confirms the distinction between “insubordination” and “insolence”, and confirms that both are very serious forms of misconduct for an employee. This case is not binding authority in Alberta, but it has persuasive weight here as well.
These are the pertinent facts in this case:
- The employee worked at the Saskatchewan Indian Gaming Authority for 8 years in the position of Procurement Process Support Officer
- In late summer of 2018, he applied for a promotion to management and was one of three candidates
- The employee met with the Director of Procurement to discuss training opportunities. During that meeting he was advised that another candidate – a women – got the job
- The employee became angry and aggressive. He accused the Director of being racist for not supporting the advancement of indigenous men. The employee said he would have had a better chance for promotion if he would have “cut his own balls off”
- The employee leaned in and pointed a finger at the Director and said his reasons for awarding the position to the other employee were “bullshit”
- The Director was quite shaken up after the meeting
- The Director filed an internal complaint against the employee. The employee was advised he was being investigated and asked to go on leave and keep the matter confidential. On his way out of the building he told 2 employees he was under investigation, and asked one of them to download a tender template and send it to him
- About a week later, the employee’s employment was terminated, purportedly for just cause
- The employee sued for wrongful dismissal
- In the lawsuit, the employer alleged just cause on the basis of: (i) breach of policy (ii) breach of common law confidentiality and good faith obligations, and (iii) harassment and insubordination towards a supervisor
- The employer won at trial, in part because the trial judge found there had been insubordination
- The employee appealed. Some of the main elements of the appeal argument were as follows:
- It was not insubordination, but insolence, which is not as bad
- The trial judge was punishing the plaintiff for raising a complaint of discrimination
- A single incident of insolence is not enough for just cause
Analysis / Conclusion
The Saskatchewan Court of Appeal first considered the issue of whether what occurred was insubordination or insolence, and concluded that it was insolence:
 […] it is apparent that [the Employer] was really asserting that Mr. Thomas had been insolent. Insubordination and insolence on the part of an employee are each capable, on their own, of giving just cause for dismissal, and both are frequently used interchangeably […]. As I read McKinley, the particular label attached to the category of misconduct does not govern the determination. The requisite contextual analysis calls for consideration of the degree of the misconduct that is said to justify dismissal and an assessment of whether, having regard to all the circumstances, it is of such a nature as to destroy the employment relationship.
The SKCA went on to consider the plaintiff employee’s argument that the trial judge had effectively punished him for complaining to his supervisors over what he perceived to be their discriminatory treatment of him. The SKCA rejected this argument as follows:
 I reject this argument as well. As I read the Trial Decision, the trial judge did not find Mr. Thomas’ conduct during the October 10 meeting to be problematic because he had raised a complaint about perceived discrimination. The motivation for Mr. Thomas’ actions was not the issue; his actions and his conduct towards Mr. Hryniuk were the problem. To put that another way, it was the manner in which Mr. Thomas had gone about voicing his displeasure (which included profane language, belittling comments and physically intimidating actions that caused his supervisor to be fearful), that led to the finding of just cause, not the subject matter that he had raised. I do not accept Mr. Thomas’ assertion that upholding the trial judge’s reasoning would amount to a finding that employees cannot raise legitimate concerns about discrimination without fear of giving cause for dismissal. Regardless of the subject matter of a complaint, the manner in which it is raised is a relevant and important component of the contextual analysis when considering whether there is just cause for dismissal.
The SKCA went on to find that a single incident of insolence could amount to just cause for dismissal in the right case, and the trial judge’s finding of just cause on the single incident in this case was not unreasonable:
 [the Trial Judge] found that Mr. Thomas’ conduct in the October 10, 2018, meeting was of such a nature that the “employer-employee relationship could not continue” because it “had been irretrievably severed” (Trial Decision at para 34). The trial judge held that what Mr. Thomas had done in the meeting had “destroyed both that fundamental trust and the capacity to work together” that was pivotal to the employment relationship, and that it was “not realistic or reasonable to think that any other person in a supervisory or management role with SIGA could” work with him. Accordingly, the trial judge concluded that Mr. Thomas’ misconduct “struck at the heart of the employment relationship” (at paras 34–35). […]
The concepts of insubordination and insolence are confused quite often. I would say that easily 20% of the time when an employer disciplines an employee for “insubordination”, the misconduct at issue was actually insolence. Many people think of all disrespect for authority as being “insubordination”, but “insubordination” is actually just where an employee refuses to carry out a direct order. Rudeness and disrespect that is not connected to refusing an order is insolence, not insubordination. They are related, but not the same.
The caselaw is not entirely consistent, but I would have to agree with one of the principles argued by the plaintiff on the appeal: a single act of insolence would generally be considered a bit less serious than a single act of insubordination. That being said, insolence is still very serious and the incident in this case was quite severe, so I am not at all surprised by the outcome.
A published copy of Thomas v Saskatchewan Indian Gaming Authority Inc., 2021 SKCA 164 can be found at the following link: https://www.canlii.org/en/sk/skca/doc/2021/2021skca164/2021skca164.html?autocompleteStr=2021%20SKCA%20164&autocompletePos=1
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