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Excerpt from this article first published in Human Resources Magazine, Issue 138 - 2 October 2007
Mr Yeboah was dismissed from his employment due to serious and willful misconduct relating to his refusal to follow a direction given by his supervisor to unload a trailer and subsequently acting in an aggressive manner towards the supervisor. He brought a claim alleging his dismissal was unfair.
The Employer contended that it had requested Mr Yeboah on two occasions during one shift to assist a fellow employee to unload a trailer and that Mr Yeboah each time refused to provide assistance claiming that it was his job to load, not unload trailers. Mr Yeboah was subsequently directed to go home however, he also refused to follow this direction. A union delegate was then involved but Mr Yeboah continued to refuse to leave and verbally assaulted, and attempted to physically assault the supervisor. After being threatened by security with police intervention to remove him, he subsequently left.
Mr Yeboah was then suspended and the Employer conducted an investigation in the incidents. As a result of the investigation the Employer terminated Mr Yeboah’s employment due to his failure to follow lawful instructions.
The Commission was satisfied that the alleged misconduct did occur as it gave greater weight to the evidence given by the Employer because it found Mr Yeboah was not a credible witness. In determining whether the misconduct justified dismissal, the Commission considered Mr Yeboah’s employment record established “a pattern of willful behaviour which amounts to a refusal to follow lawful instructions from his supervisors to the point of a repudiation of his employment contract”. Accordingly, it did not find that the termination was inappropriate or disproportionate to the misconduct. The Commission was also satisfied that the Employer followed a proper procedure in determining whether to terminate Mr Yeboah’s employment. Accordingly, the Commission found that the termination was not harsh, unjust or unreasonable and dismissed Mr Yeboah’s claim.
The failure of an employee to follow a lawful direction may be a basis for terminating an employee’s employment.
Employers should ensure they make appropriate enquiries into an employee’s failure to follow a lawful direction in order to determine the appropriate disciplinary action to take. Legal advice should be sought if the employer is uncertain whether the conduct justifies dismissal.
Beth-Marie Kitchener
Lawyer
