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Can an employee criticize a superior with reprisal?
When does it become justification for the termination of the employee for cause?
Not all comments made by an employee about the Company or their boss that are critical in nature justify termination. Here are some of the considerations that Courts use and Human Resources professionals should consider when analyzing this issue.
1. Exactly what was the actual comment and the circumstances and tone in which it was said. When Courts have addressed this issue they have considered the following:
- Threats – Threatening violence is usually a fast track to termination
- Criticizing a boss’ decision is not necessarily a disciplinary matter. There are some situations where superiors act improperly and criticism may be warranted. However:
- Making unfounded accusations of dishonesty
- Making unfounded accusations of incompetence
- Making comments about a superior’s ethnicity, family religion, and other personal matters
will usually be determined to be intolerable
2. To Whom did the employee relay the criticism:
- Employees have been terminated for criticizing the superior to the boss’ superiors. Again it depends on the circumstances of the case but if an employee sends an email or a letter, in the hope of embarrassing management, in the eyes of shareholders or a superior in the Company, the Courts have determined that this may justify termination. There was a situation in British Columbia where a campus radio manager was fired for doing this – even when his language was respectful and his criticisms had merit. [McCabe v Simon Fraser Campus Radio Society]
3. Was it legitimate criticism or strictly insubordination, vindictiveness or insolence. Posting criticism on-line where a blog is readable to anyone in the world with access to the Internet may well justify dismissal
4. Was there provocation? Did the employee make a regrettable, verbal outburst? In cases like this the Courts will often be more lenient and find that termination is too harsh. The Courts have recognized that “many things are said and done in the heat of the moment that, on reflection, are regretted.”
It’s fairly difficult to prove that an employee’s criticism of management constitutes just cause for termination. If the employee puts a criticism in writing or goes over the boss’ head rather than confronting his or her superior directly, and uses language or tone that is disrespectful, inflammatory and potentially harmful to the business, the company may be more prone to terminate.
