Gross Insubordination - What employers can learn from Carlos Tevez!

So Carlos Tevez has finally apologised. For those who may not be aware, Carlos Tevez is a professional soccer player who plays with Manchester City. Famous for being a notoriously difficult individual, the player was the subject of worldwide media attention and condemnation when the gifted striker refused point blank to come off the bench as a substitute in a game against Bayern Munich when his team were losing 2-0. This sparked a furious reaction from his manager and ultimately led to the player being fined £1.2 million. The player was told he had to apologise for his behaviour if he was to be allowed to play again and that until he did he would have to train on his own. In protest, the player returned to his native Argentina and this, coupled with his refusal to come on in the Munich game, led to the club suspending him without pay. Four months later the apology has been received and with Tevez having lost out on £9.3 million in wages, Peninsula Business Services is going to consider the lessons that can be learned from this matter by employers when dealing with an employee who is deemed to be acting in a grossly insubordinate manner. Gross Insubordination - How serious is it? In the Irish case of Brewster -v- Burke and the Minister for Labour (1985) JISLL 98, the High Court stated that “it has long been part of our law that a person repudiates the contract of service if he wilfully disobeys the lawful and reasonable orders of his master. Such a refusal justifies an employer in dismissing an employee summarily.” This decision really does reflect the gravity of an offence of gross insubordination in an employment context. On the face of it, an incident of gross insubordination can be viewed as gross misconduct justifying the summary termination of an individual’s employment. However, one must also be mindful that this is a decision of a judicial court that would generally operate in a more black and white cutthroat fashion when considering issues such as this. In all reality, an employer will need to take into account the overall situation before considering a decision to dismiss and in this respect it is important to note the approach adopted by the Employment Appeals Tribunal. Illegal/Unlawful Instructions or Instructions Given in Bad Faith It is important for an employer to note that an employee has the right to refuse to carry out an instruction from their employer if that instruction was to carry out an unlawful or illegal activity. This was determined by the EAT in the case of Brown -v- McNamara Freight (UD 745/1987). A similar decision was reached in the UK case of Morrish -v- Henlys Ltd. [1973] 2 All ER 137 where it was decided that the employee could legitimately refuse to obey an employer’s instruction to falsify the company’s accounts. It is also worth noting the decision of the Court of Session in the UK in the case of Macari -v- Celtic Football and Athletic Co Ltd [1999] IRLR 787 where it was held that employees are not obliged to comply with instructions that have been given in bad faith in circumstances where  the employer was ill-disposed to the employee and the “instruction was issued to the employee in bad faith to the degree that it was manifest that the instruction had not been issued with a genuine desire to avail the employer of the employee's services under the contract of employment but rather to embarrass or harm the employee.” Refusal to Change Terms and Conditions of Employment It is clear from case law that the EAT will not just consider the instruction itself and the employee’s refusal to follow same but they will also consider the factual circumstances surrounding that instruction. A case worth considering is Cavanagh -v- Dunnes Stores (UD 820/1994) where the EAT considered whether it was fair that the employee was dismissed when he had refused to relocate his office from the Head Office to an individual store in the ILAC centre in circumstances where the employee was initially agreeable to the relocation. Ultimately the employee refused but the decision to dismiss was held to be unfair despite what may have been deemed gross insubordination. One of the primary reasons for this was because the employee was moving from a substantial office in the Head Office to a small room under the stairs in the individual store. This small room, he argued, was too small to accommodate his workload, his files and his staff. Additionally, the employee was the security manager on a national level and it seemed as though his relocation meant that his remit was being restricted to the security management of the ILAC store alone. Despite a meeting being held to allay the manager’s fears, the EAT held that these assurances had fallen well short of what was expected and that the assurances given did not in any way satisfy the manger’s concerns. Reasonableness of the Employer’s Behaviour In the Cavanagh -v- Dunnes Stores mentioned case above anther primary factor in the decision to declare the dismissal to be unfair was down to the fact that the manager was not given any advance warning and he was dismissed without the employer having first conducted a fair and effective disciplinary hearing. Ultimately, the EAT held that “even if it has been established that the claimant’s refusal to obey the instruction amounted to a refusal to obey a legitimate instruction justifying dismissal, the dismissal would have been unfair by reason of the failure to accord to the claimant his right to fair procedures.” This case is again indicative of the absolute importance of an employer acting reasonably. Even in the face of what appears to be clear gross insubordination an employer can be held liable for unfair dismissal if they do not first conduct a disciplinary hearing. It is interesting to note in the Carlos Tevez case he was only fined and suspended after first having been subjected to a disciplinary hearing and he was afforded a right to appeal that decision to an external regulatory body. Equally, however, the employee must also act reasonably in their failure to follow what would be deemed to be a reasonable management instruction. This is the case notwithstanding the fact that the employee is not contractually obliged to follow that instruction. For example, in the UK case of Horrigan -v- Lewisham London Borough Council [1978] ICR 15 it was held that an employee had unreasonably refused to work overtime notwithstanding the fact that his contractual terms did not specify that he was obliged to do so. This was due to the fact that the employee had been working overtime for the previous ten years without issue and it was unreasonable to then hide behind the contract of employment as an excuse for refusing to work overtime in future. Similarly, the EAT in Fulham -v- Curragh Knitwear (UD 76/1978) have held that an employee’s failure to follow a reasonable management instruction will be viewed more seriously by the Tribunal if it was obvious to the employee, or at least should have been obvious, that their failure to follow that instruction would lead to adverse consequences for the employer’s business, particularly if these are adverse financial consequences. Conclusion So what can we learn from the above? Essentially gross insubordination or the wilful refusal to follow a reasonable management instruction is gross misconduct. However, in order to justify dismissal an employer must first be fully confident that the instruction being issued is in fact a reasonable one. If it is not then the dismissal will be unfair. Similarly, an employer will only be able to justify dismissal if first they have conducted a fair and effective disciplinary process with the employee in question before reaching that decision to dismiss. Employers should seek advice from Peninsula Business Services if they are faced with a potential issue of gross insubordiantion as the financial repercussions on the employer might be quite significant. Please phone the 24 Hour Advice Service on 01 8555050 and one of our experienced advisors will be happy to assist.