Employment lawyers explain difference between disagreement and disobeying orders — and importance of progressive discipline
A worker in Spain may have thought she was proving her commitment by showing up to work up to 40 minutes before her shift every day. Instead, she was fired – and a court backed the employer.
The real problem wasn’t the worker’s seeming eagerness to come to work — it was her repeated refusal to follow instructions not to do so, despite receiving several warnings over a period of two years. A Spanish court sided with the employer in the case — as reported by Spanish media and garnering attention on social media — finding the worker was guilty of insubordination.
For employment lawyers Natasha Atyeo and Stephen Torscher, the ruling is more about how employers define, communicate, and enforce expectations around work.
When disagreement becomes insubordination
Atyeo — who’s an associate at Grosman Gale Fletcher Hopkins LLP in Toronto — cautions that not every clash with an employee, or even a flat “no” in the moment, should be treated as insubordination.
“People are allowed to disagree at work and they're allowed to have productive group discussions about what should happen and what shouldn't happen,” she says.
Atyeo adds that employees should be allowed to push back a little for purposes of honesty and productivity, and employees should feel free to do that. “I think employers should encourage that kind of behaviour and, in most cases, they do,” she says. “But if there's an awareness that the employer has asked them to do something and they intentionally don't do it, that’s going to bring it under the umbrella of insubordination.”
According to Atyeo, true insubordination materially affects the employment relationship, is tied to a clear directive, and is intentional. “It's going to be akin to direct refusals and a refusal to do something related to work,” she says.
Torscher — co-chair of the employment practice group at Carbert Waite in Calgary — frames it in more legal terms: when an employee receives a lawful and reasonable direction, and they refuse to comply. “[It's about] when an employer gives a direction, has a rule, or something that they want the employee to do, and the employee refuses to do it,” he says.
Whether that refusal justifies a forcause termination is another matter. Canadian courts apply a contextual, proportionality-based analysis, including the seriousness of the incident, the employee’s history, and whether the behaviour has effectively “repudiated the employment contract,” according to Torscher.
Enthusiasm or defiance putting the employer at risk?
At first glance, the story from Spain looks like a tough response by the employer. Over nearly two years, the worker routinely arrived around 30 to 45 minutes before her the start of her shift and kept doing so even after multiple verbal and written warnings from the employer to stop. The court held that the real issue wasn’t punctuality but “ongoing disobedience and a breach of trust, which are considered serious misconduct under Spanish labour law.”
Torscher says that, in the Canadian context, the decision is logical.
“There were multiple warnings that this was her start time, to stop coming in early, and stop trying to log into the systems before her scheduled start of work,” he says. “And the employee continued to show up early and do those things despite those clear warnings.”
Those repeated directions and warnings were an important factor in justifying the worker’s firing, says Torscher. “Warning the employee that if she continued to do this, she could face discipline — that's helpful for employers in order to enforce discipline for insubordination.”
Torscher points to recent changes in Spain that made hours-tracking and payment rules more stringent, exposing the employer to penalties if the worker operated outside of scheduled times. This further made the employer’s warnings reasonable and lawful, he says. “If you've constantly got an employee who's not following your directions to start work at a certain time and only log in when it's your working hours, the employer can be offside of those regulations,” says Torscher.
For Canadian organizations, the lesson isn’t that eager employees are dangerous. It’s that where a rule is connected to legal compliance, safety, or core operations, once expectations are clearly set, ongoing defiance can’t be brushed off as harmless enthusiasm, says Torscher.
Disobeying clear directives and warnings
Atyeo sees the case as a textbook example of how behaviour that looks minor on its face can rise to the level of insubordination once the employer has laid down a clear trail of directives and warnings.
“Eventually, [the behaviour] became something that [the employer] said not to do, and it had adequate documentation to be able to say that she was there with an awareness going against that direct ask,” says Atyeo.
Successful for cause insubordination terminations are still fairly rare in Canada, and most failures come down to process, she says: “To have a successful insubordination case there has to be progressive discipline and an immense amount of documentation related to it."
Atyeo believes that the proper strategy for dealing with insubordinate behaviour involves an established progressive discipline process, following it precisely, and making the stakes clear.
“You have to put employees on notice, especially in insubordination cases where it’s a gray area,” she says. “You want to make it, as an employer, as black and white as possible, and the only way to do that is by putting them on the strictest form of notice, which is essentially that you could be terminated for cause if this continues.”
Progressive discipline policy
That means verbal warnings, written warnings, and a final written warning that clearly states further noncompliance could amount to termination for cause. Without that last step, even solid documentation may not lead to success in legal proceedings if the discipline or dismissal is challenged.
“It's important to document all of the smaller incidences and provide progressive discipline in accordance with the company's policies for such things,” says Torscher.
Both lawyers say the real work starts long before a supervisor accuses someone of insubordination. They agree that the first line of defense is well-designed, well-communicated policies.
“It's really important that the rule or direction, whatever it is that's alleged to have been breached, is clear and well-known to the employee, and it’s been explained to them,” Torscher says — a key factor that help the employer in the Spanish case.
Reviews and documentation
He suggests that employers keep those rules under constant review as statutes and workplace norms evolve. “Ensuring that your policies and your rules are all in compliance with the latest developments in the law would be helpful,” he says. “And then if there are changes, roll out effective communication of those changes, the rationale for them, and training on new policies.”
When concerns of potential insubordinate conduct surface, HR should move quickly to respond and treat recordkeeping as a core part of their strategy, not an afterthought, says Atyeo.
“It doesn't necessarily have to be the most formal sense of note-taking in the beginning as long as are emails and verbal communications — I always encourage people to email themselves if they've had verbal confirmations or communications with someone, it just helps provide a clear understanding,” she says.
Communication gaps a liability
Underneath many insubordination disputes, Atyeo sees a common complaint from employees: they never fully grasped what was happening until it was too late.
“What I hear from employees on the other side of these cases is often that they didn't feel like they were communicated with in a way that they really understood what was happening,” she says. “When somebody's coming to HR and saying ‘I feel like there's some kind of insubordination happening here,’ giving the individual in question the opportunity to communicate with HR about the situation, gives them the opportunity to feel like they've been heard and hopefully prevent it from escalating further.”
Torscher believes HR and organizational leadership must pay attention to the quieter signals that something is going wrong: “Being aware of what's being said and what's happening in the workplace is a good practice, and keeping the pulse of your workforce isn’t a bad thing."
He also highlights the need for credible channels where staff can raise concerns without fear, particularly in larger organizations where it might be more difficult to keep tabs on potential problematic situations. “A work environment that fosters that kind of communication and with some sort of avenue to raise concerns would be helpful,” he says.
Dealing with potentially insubordinate employees can also involve more than a single chain of command, according to Atyeo.
“I think employees can be confused and may feel stuck when the chain of command is between them and their manager and there's not a third party who can intervene and provide them with some support,” she says. “So practically, make sure there’s someone that employees can speak to beyond their direct chain of command to get advice on how to continue in a certain situation — and that also puts HR on notice that there might be something going on.”
