4 June 2024
Insubordination in the workplace is often a serious matter because it can affect working relationships between an employer and employee, undermine the structural lines of authority in a workplace, and it could have long-term adverse effects on team morale within a company.
However, not every disagreement in the workplace can be labelled as insubordination, and employers are often left perplexed as to what constitutes insubordination, especially when insubordination is of such a gross nature that it would warrant dismissal.
What is insubordination?
In layman’s terms, insubordination occurs when an employee refuses to accept the authority of their employer or of a person in a position of authority over an employee, such as a line manager.
Insubordination usually occurs when an employer gives an employee a reasonable instruction that is capable of being performed within the ambit of the employee’s job or course and scope of employment, and the employee refuses to accept this authority or refuses or fails to obey the instruction. In a legal context, the offence of insubordination has been described in several cases over the years.
Case study - Palluci Home Depot (Pty) Ltd v Herskowitz and Others
One of the best examples of such a description can be found in Palluci Home Depot (Pty) Ltd v Herskowitz and Others (2015) 36 ILJ 1511, where the Court stated that: The offence of insubordination in the workplace has been described as a wilful and serious refusal by an employee to obey a lawful and reasonable instruction or where the conduct of an employee poses a deliberate (wilful) and serious challenge to the employer’s authority. In some cases, defiance of an instruction may indicate a challenge to the employer's authority, but this is not so in every case.
Insubordination may also be found to be present where disrespectful conduct poses a deliberate (wilful) and serious challenge to or defiance of the employer’s authority, even where there is no indication of the giving of an instruction or defiance of an instruction.
When does insubordination become gross insubordination, and when will it justify dismissal?
Schedule 8 of the Labour Relations Act, 66 of 1995 (also known as the Code of Good Practice) lists gross insubordination as a permissible ground for dismissal, but Item 3(4) of this Schedule lists a vital prerequisite as far as dismissal for this conduct is concerned, and it states the following: Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is severe and of such gravity that it makes a continued employment relationship intolerable.
Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination. From this Item, one can deduce that the severity and gravity of the misconduct play essential roles when a distinction stands to be made between insubordination and gross insubordination.
Fortunately, our courts have elaborated on key considerations for employers before they dismiss an employee for alleged insubordination. In NUMSA & Another v Kromberg & Schubert (Pty) Ltd (2008) 29 ILJ 1343 (BCA), for example, the court stated that the alleged insubordination must be serious, persistent, and deliberate and that the employer must adduce proof that the employee was in fact guilty of defying an instruction.
Case Study - Independent Risk Distributors SA (Pty) Ltd (JR 1906/19)
The case of Independent Risk Distributors SA (Pty) Ltd (JR 1906/19) is a practical example of how our courts deal with insubordination. In this case, the employer had dismissed their sales representative for gross insubordination after the latter had allegedly challenged or undermined the authority of the company’s CEO during a staff meeting when the sales representative had questioned and/or challenged the instruction issued to them by the CEO in the presence of their colleagues.
The CEO instructed all the sales representatives present to go home, reflect on their performance, and return to the office the following day. The employee allegedly proceeded to challenge and undermine the CEO’s authority.
During the arbitration proceedings, and after considering the evidence and witness statements, the arbitrator concluded that the employee’s dismissal was unfair and ordered the employee reinstated. From the witness statements on behalf of the employer, it became clear that the employee had questioned the CEO in a problematic manner and that the employee asked questions, and whenever the CEO tried to speak, the employee interrupted the CEO with an unacceptable and disrespectful tone. However, one witness stated that the employee asked questions after the CEO gave the instruction but that the employee’s conduct was not inappropriate.
The employer applied for a review of this decision, and the Labour Court aptly laid down key considerations during its enquiry into the gravity of the insubordination concerned, namely that it must consider the employer's action before the deed, the reasonableness of the instruction, and the presence of wilfulness by the employee.
The Labour Court held that dismissal is reserved for all instances of gross insubordination, or the wilful flouting of an employer’s instructions and that a single act of defiance by an employee is insufficient for an employer to conclude that insubordination had occurred. As for gross insubordination, the Court held that the conduct had to be severe, persistent, and deliberate, and, according to the Labour Court, this was not the case in this matter.
Conclusion
From the Labour Court’s ruling in Independent Risk Distributors SA (Pty) Ltd (JR 1906/19), it is evident that a single instance of insubordination is not always reason enough to dismiss an employee. For dismissal to be justified, each case must be examined on its own merits whilst bearing in mind that dismissal is usually reserved for instances where the insubordination was severe, persistent, and deliberate enough to render any further working relationship intolerable.
If you would like to find out more about your rights as an employer and on what grounds you have for fair dismissal, then please feel free to contact Invictus Group at 086 173 7263 or email us at admin@invictusgroup.co.za
