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Why Is This Place So F#%&ed Up?

Among the possible acts of workplace insubordination, criticizing your boss to his or her superior ranks high on the list of actions sure to generate a negative reaction. But what if the criticism was solicited rather than voluntarily offered up?
 
Mau was an employee of the Canadian National Railway Co., in the position of Trainmaster, between 1999 and 2007. Initially, he was stationed in Sarnia, Ontario but later relocated to Kamloops, B.C.
 
In November of 2007, Mau began reporting to a new Assistant Superintendent of the Kamloops CN terminal, Roberts. Roberts reported, in turn, to the Superintendent of Operations of CN’s B.C. South Division.
 
In December of 2007, the Superintendent of Operations visited the Kamloops terminal. The events of that visit led to the termination of Mau from his employment for “insubordination” and “lack of professionalism”.
 
During the visit to the Kamloops terminal, the Superintendent approached Mau in the yard and asked him some questions about problems that were being experienced at the Kamloops terminal. In particular, Mau was asked why the Kamloops terminal was “so f#%&ed up”.
 
Mau answered this unusually direct question candidly, telling the Superintendent he should look at a calendar to see what had changed in the Kamloops operation. That comment was intended to be a reference to the recent arrival of Roberts to the Kamloops terminal.
 
A little later, Mau was asked to attend at the office and was directed to go into Roberts’ office. There, Mau was informed by Roberts that he was being “relieved of his position for gross insubordination”.
 
Mau filed a complaint of unjust dismissal pursuant to Part III of the Canada Labour Code.
 
The arbitrator zeroed in on the fact that the heart of the matter was the relationship between Mau and Roberts. It seems that the “artificial, detached, and rigidly hierarchical management approach” of the Assistant Superintendent, his “unreasonable demands and expectations, and his propensity to take undue umbrage” were at the heart of this relationship difficulty.
 
The arbitrator noted that Mau had made statements critical of Roberts and that making critical comments “about one’s superior to higher members of management may very well constitute insubordination”. But, in the circumstances of this case, Mau’s comments did not.
 
In particular, Mau did not volunteer his criticism to the Superintendent. He was asked questions pointedly seeking an explanation of why the Kamloops terminal “was so f#%&ed up”.
 
As the arbitrator stated, “both the questions themselves and the language used to frame them, reasonably gave Mr. Mau the impression that his honest candour was being sought. Mau “simply communicated his view that the Kamloops terminal had ceased to function well coincident with” Roberts’ arrival.
 
The arbitrator commented that, “at some point, a superior who asks blunt questions will be taken to have solicited blunt answers.”
 
The arbitrator determined that none of Mau’s conduct complained of constituted insubordination or insolence. The outcome was a finding that Mau had been unjustly dismissed and, as a result, CN was ordered to reinstate Mau to his employment.
 
As in all things employment-related, this outcome was highly dependent upon the context in which the alleged insubordination occurred. For employers, the lesson is that employees should not be penalized for providing a blunt answer to a blunt question.
 
Robert Smithson is a lawyer in Kelowna practicing exclusively in the area of labour and employment law. For more information about his practice, or to view past “Legal Ease” columns, log onto www.pushormitchell.com