Rejecting an order

Brewster v Burke and the Ministry for Labour (1985) established the principle that an employee repudiates a contract of service if he “wilfully disobeys the lawful and reasonable instructions of his master”. That case established that one incident of insubordination can amount to gross misconduct, justifying the dismissal of an employee or other discipline.

While the term ‘insubordination’ evokes a past era with a master/servant culture, recent cases have brought the concept to the fore. Sinead Morgan, a Senior Associate in DWF’s employment law team, notes how cases such as Castolin Eutectic Ireland Limited v Rafal Kita, and Swissport Ireland v Cakolli, saw the court asked to consider the discipline applied where an employee allegedly refused to follow a reasonable instruction.

Parsing recent cases

In most ‘reasonable instruction’ cases, there is no dispute as to whether the employee refused the instruction. Instead, writes Morgan, cases tend to hinge around employees’ justification for that refusal. Without a clear legislative test for a reasonable instruction or reasonable refusal to follow an instruction, the case law offers valuable guidance. In particular, she notes, Cashman v St Patrick’s Hospital Cork provides useful direction on the steps an employer should take when disciplining an employee for insubordination.

Writing in the Gazette, Morgan analyses the context and outcome of several recent cases in Ireland and beyond.

• Read the full article in the July 2018 Gazette

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