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MISCONDUCT & INSUBORDINATION

There are many forms of insubordination, and its sibling, insolence. Insubordination is mainly related to any form of words, conduct, or failure to act that shows a refusal or reluctance to comply with a valid instruction from a superior who has the power to give such an instruction. In order for it to be misconduct, the order has to be exactly that, an order, and also a valid one.


The Labour Court defined insubordination as: “a wilful and serious refusal to obey a lawful and reasonable command or conduct by the employee that poses a deliberate and serious challenge to the employer’s authority.”


Insubordination is not the same as poor work performance. Poor work performance relates to how badly the employee has performed work or missed deadlines. While poor work performance can sometimes be wilful there is usually some work that is done, albeit badly, and the poor performance occurs regardless of whether the employee has been given an instruction. On the other hand, insubordination means the employee’s refusal to obey a specific instruction whether the instruction relates to work performance or not.


In order to determine whether an instruction is valid the following will have to be considered:


The instruction must be lawful, and the employee must be capable of performance –

The employees must have the necessary knowledge, skill, capability, and ability to carry out the instruction. Instructing an employee to do something which they clearly cannot do is unfair and unreasonable. In addition to this, the instruction must be a lawful instruction, in other words, one may not instruct the accountant to transfer a million rand to your private bank account and then discipline the employee for refusing to do so.

If you were to instruct an employee to do something that they clearly are not certified to do or not qualified to do, the instruction is not only unreasonable but also unlawful.


The instruction must fall within the ambit of the job –

It would be almost impossible to give comprehensive and detailed job descriptions to employees and to keep them updated. Job descriptions can best be described as a summary of key areas of responsibility for a specific position and by mentioning one area or performance several others are implied. An example would be the responsibility for “general workplace administration”; this responsibility in return implies other tasks such as filing, answering telephones, sending emails, ordering of stock, etc.


The Labour Court holds that – ‘should it be shown that the instruction was unlawful, it would be the end of the enquiry. If it is found that the instruction was lawful, the expectation is that the employee to whom such instruction was issued should have complied. It will have little, if any, to do with whether the instruction related to the employee’s job description because it will never be a justification for an employee to refuse lawful instructions merely because the instructions are not their direct functions.”


Employees are therefore under a duty to adhere to all instructions issued by their employers as long as such instructions are lawful, reasonable, and capable of performance by the employee.


The instruction must be reasonable under circumstances –

For example, if the employer tells the receptionist to repair a faulty plug on a Sunday when the employee normally does not work, the receptionist might be entitled to refuse, because they will be required to carry out a task;


  • That is completely outside their sphere of duties,

  • That is outside their capabilities,

  • Assigned to a time that is not normally worked, and

  • That if carried out by the receptionist, could result in danger to the users of the plug.

A different scenario is when the receptionist is instructed to contact an electrician to repair the plug as the employer is currently not able to make such arrangements themselves. Under these circumstances, the instruction would be both legal and reasonable.


From the authoritative “do it now” to the polite request in a soft voice, there will always be the basic feature of an instruction being issued, and that is that the employee is required to oblige as part of making their effort available to the employer. As instructions are also often given in different ways and the polite request should not be seen as an option if it is still an instruction. It is therefore imperative that the employee should be left with no doubt that the instruction was not a request with the option of either performing or not performing; the instruction is to be clear that there are no alternative options.

The employee’s failure to comply with an instruction constitutes insubordination and in essence, constitutes a challenge to the employer’s power to control their output. The employee, who challenges the employer’s authority to control, is challenging also one of the foundations of the employment relationship.


Insubordination vs. Insolence

Insubordination must be differentiated from insolence, Insolence is being cheeky, rude, or disrespectful towards a superior or another employee or even customers and third parties. Although sometimes a mere irritation, its negative effect on the authority of the manager or supervisor should not be ignored! Other employees see it, get respect for the “brave” employee, and lose respect for the weak-hearted manager, and before you know it, they are also becoming insolent. Insolence also often turns into more serious misconduct such as insubordination, poor work performance, and very often attendance problems.


Insubordination and insolence can present itself in different ways and can sometimes be coupled into one act of misconduct. In many cases, there are also the underlying issues and stresses, and strains in workplace relationships, such as long-running grievances, personality clashes, poor people management misconceptions due to poor communication skills, personal differences, disappointments, and a whole range of other issues.


Insubordination, negligence, or refusal to adhere?

Outlined above are the differences between insubordination and insolence but what about negligence? An act of negligence is normally not intentional and does not necessarily mean that the employee challenged the authority of the supervisor. It could be that the employee had the best intentions to adhere to the instruction given by the supervisor but completely forgot about it during the course of the working day. Is this insubordination or negligence? The safer option would be to treat such a situation as negligence instead of insubordination since it will be difficult to prove that the employee challenged the authority of the supervisor, they simply forgot about the instruction.


Can it, if there is evidence indicating that the employee could not have “forgotten” about the instruction, be said that the employee was insubordinate? In order to succeed in proving that the employee is guilty of insubordination the employer must be able to prove that the employee deliberately refused to perform and, in the process, showed disrespect towards the person with authority by not performing. There may however be instances where an employee deliberately refused to adhere to an instruction for reasons that had nothing to do with the authority of the employer. Under such circumstances, it would be best to charge the employee for refusing to adhere to a valid work-related instruction instead of insubordination.

How to deal with insubordination?

It is recommended that employers should adopt a policy that clearly stipulates that employees are to first adhere to an instruction, whereafter they may lodge a grievance if they are still of the opinion that the instruction was unreasonable. That way, it will be ensured that the work is done and not unnecessarily delayed.


It is also advised that employers confirm that the employee understands the instruction that was given. It may be that the supervisor issued an instruction that the employee did not understand and was not given the opportunity to ask questions in order to obtain clarity.


Should an employee at a later stage after initially refusing to adhere to a valid instruction comply with the instruction, disciplinary action may still follow. It simply does not follow that if an employee later changes their mind and complies with an instruction, that their initial refusal to accept the instruction then evaporates as if it was conduct that never occurred.


Insubordination is very serious and should be dealt with consistently. Failure to deal with insubordination will ultimately lead to other forms of misconduct, even possibly attendance problems in the workplace. In terms of Schedule 8 of the Labour Relations Act (LRA) employers should attempt to progressively correct the behaviour of employees by applying alternative measures such as written warnings or final written warnings prior to dismissing the employee.


Due to the seriousness of insubordination, employers are advised to start with a final written warning that remains valid on the file of the employee for a period of 12 months. For more serious situations where the trust relationship has been destroyed as a result of the employee’s refusal to adhere to a valid instruction, dismissal may be considered as an appropriate sanction even if it is the first offense.


Gross insubordination normally warrants summarily dismissal for a first offense. If an employer is able to prove that the insubordination was serious, persistent, deliberate and that the employer could not reasonably have been expected to endure such defiance, then termination for a first offence may be warranted.


The Commission defined “gross insubordination” as – “The duration of an employee’s defiance is a matter which concerns the continuation of the insubordination not whether the employee was guilty of insubordination. Gross insubordination occurs when the defiance is serious, persistent, and deliberate.”


Key points:

  • Insubordination is the failure of an employee to adhere to a valid instruction given by a person with authority and by doing so shows disrespect towards such a person.

  • Negligence is when an employee fails to perform but not intentionally.

  • Refusal to adhere to an instruction is when an employee refuses to adhere to an instruction but without the intention to show disrespect towards the person that issued the instruction.

  • Insubordination is serious misconduct and could lead to the dismissal of the employee even for a first offence.

  • Ensure that the instruction is a valid instruction.

  • The employee must be capable of performing.

  • The instruction must fall within the ambit of the position.

  • The instruction must be reasonable under circumstance.

  • Ensure that the employee understands the instruction and the consequences for failing to adhere.

  • Trade union representative (shop stewards) may also be dismissed for insubordination.

  • Before disciplining a trade union representative (shop steward) the union should be given the opportunity to discuss the intended disciplinary action with the employer.

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