Too often, employers fail to pick their battles. They stubbornly maintain legal arguments that seldom succeed, and they tend to allege employee misconduct without the facts to support that claim. Mostly, it is just because they can.  The good news is that the courts are often unimpressed.      

Donald Duguay was hired as a “Cubex driller” in mine production. He was not hired to do “rock bolting” work, which is more dangerous than drilling and requires extensive training. During his job interview, Duguay specifically said he did not want to do bolting.

However, shortly after he started, Duguay was told to perform bolting work. Confused, Duguay shadowed a bolter, but declined to do any of the work. A few hours later, the company demanded that Duguay stop observing and start bolting. Not surprisingly, Duguay refused and announced, “I won’t bolt now or ever.”

Duguay was fired on the spot. The company claimed that his refusal to bolt was serious insubordination and that he needed to perform whatever work the company required of him. Unconvinced by this claim, Duguay recently sued for wrongful dismissal.

At trial, the court scrutinized Duguay’s job description and the way the company forced him to bolt. In finding that Duguay was hired only to drill and do related mine production duties, the court said that if the company wanted him to perform other duties such as bolting, that requirement must be made clear to Duguay at the time he was hired, not after. Therefore, Duguay’s refusal to bolt was not insubordination because the company could not suddenly impose those duties on him without his agreement. Duguay was awarded severance, and the company was out of luck.  

There are a few key takeaways: employees need to carefully consider whether they can decline new directives.  Mistakenly interpreting a change in their job as being major will rebound poorly on them, not their employer.  Employers have to pick their battles prudently. The court was swayed because Duguay’s refusal came against the backdrop of a request to perform dangerous work with little training.

Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP.  Reach him at dan@toronto-employmentlawyer.com. Follow him on Twitter @danlublin.