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By PORAC | October 1, 2004 | Posted in PORAC LDF News

Accidental Insubordination?

Posted by Tawni Olson

Insubordination? What is it exactly? Can negligent or unintentional conduct sustain a charge of insubordination? This article briefly summarizes the charge of ”Insubordination” and various cases where the issue of intent has been discussed.

Insubordination covers a range of conduct from refusal to obey an order to disrespectful, rude and insolent conduct. Whether such conduct can be based on negligent or accidental acts, has been answered by the seminal California case Coomes v. State Personnel Board (1963) 215 Cal. App. 2d 770. The court in Coomes explained that insubordination carries a “volitional coloration which excludes the notion of accidental or even negligent conduct” (Coomes, supra 775). Evidence which fails to establish willfulness, knowledge or intent lacks an indispensable element for proof of guilt. (Id. 776).

A review of cases from other jurisdictions, the private sector and state Personnel Board, support that negligence is insufficient to support a charge of insubordination. Richard Stanton (1995) SPB Dec. No. 95-02, p. 10, the board summarizes:

“To support a charge of insubordination, an employer must show mutinous, disrespectful or contumacious conduct by an employee, under circumstances where the employee has intentionally and willfully refused to obey an order a supervisor is entitled to give and entitled to have obeyed. (citations omitted). A single act may be sufficient to constitute insubordination if it meets the above test. …Appellant has no right to put conditions on his obedience. Appellant’s initial refusal to obey his supervisor’s order constitutes insubordination.”

In addressing the issue of intent, courts and administrative agencies consider various factors including, inter alia, the clarity of the order given or policy violated, the employee’s understanding of the employer’s expectations, and the facts and circumstances surrounding the conduct. For example, an allegation of insubordination will likely be sustained when there is sufficient evidence that shows that an employee; 1) knew of the policy or order and; 2) they refused to follow; or 3) failed to improve conduct over time.

For example in Meraz v. Joanne Stores, Inc. (C.D.Cal.2004), the court found a cashier was properly terminated for insubordination when the evidence showed a continuous violation of company policy with respect to proper use of a quality key. She continued to ignore notations in her annual performance evaluations concerning the proper use of the key. Further, the evidence showed that she had been given express warnings by her supervisor, which she chose to ignore. The employee’s acts were deemed intentional due to evidence that the policy had been clarified verbally and in writing and she chose to ignore by failing to change her actions.

Conversely, in cases where insubordination is not found, evidence from which intent can be inferred is lacking. In such cases, the circumstances surrounding the conduct are important to the analysis. For example, in Reisig v. Kirby (1969) 309 N.Y.S. 2d 55, an employee failed to return to work after taking leave of absence. Although the employee understood the policy, the employee was physically incapable of complying due to the individual’s physical illness.

Another key factor is the employee’s understanding of an employer’s expectations and clarity of the orders allegedly violated. For example, in Fortunato Jose (1993), SPB Precedential decision, 93—34 the employee failed to properly dispense medication. The board found the employee’s actions did not amount to insubordination despite an order to dispense medication. The intent was not shown. The board noted that since no policy existed on the proper dispensation of medication, the employee was hindered in his ability to implement the order.

This is not to suggest, however, that insubordination may not be sustained simply because of ignorance or the non-existence of a policy. Conduct that is known or should be known to be improper (altercations with supervisors), or evidence of willful ignorance (failure to inquire or ascertain policy or procedure), is unlikely to provide a valid defense to insubordination.