WHAT THE COURTS HAVE TO SAY ABOUT INSUBORDINATION

Written by Megan Griffiths

Insubordination occurs when an employee deliberately refuses to obey a lawful and reasonable instruction from an employer or manager. While not every disagreement amounts to insubordination, persistent and wilful defiance undermines workplace discipline and can justify dismissal under the Labour Relations Act (LRA).

Defining Insubordination

In Sylvania Metals (Pty) Ltd v M.C Mello N.O & Others, the Labour Appeal Court held that:

“Insubordination in the workplace context generally refers to the disregard of an employer’s authority or lawful and reasonable instructions. It occurs when an employee refuses to accept the authority of a person in a position of authority over him or her and, as such, is misconduct because it assumes a calculated breach by the employee of the obligation to adhere to and comply with the employer’s lawful authority. It includes a wilful and serious refusal by an employee to adhere to a lawful and reasonable instruction of the employer, as well as conduct which poses a deliberate and serious challenge to the employer’s authority even where an instruction has not been given.”

The Court in Palluci Home Depot (Pty) Ltd v Herskowitz and Others discussed the “fine line” between insubordination and insolence, with the latter being conduct that is offensive, disrespectful in speech or behaviour, impudent, cheeky, rude, insulting, or contemptuous. While the Court noted that insolence may become insubordination where there is an outright challenge to the employer’s authority, “acts of mere insolence and insubordination do not justify dismissal unless they are serious and wilful.” The sanction of dismissal is reserved for instances of gross insolence and gross insubordination, or the wilful flouting of the instructions of the employer.

In summary, an enquiry into the gravity of insubordination requires consideration of three aspects, namely:

• the action of the employer prior to the deed,

• the reasonableness of the instruction, and

• the presence of wilfulness by the employee.

Insubordination vs Gross Insubordination

In the matter of Bearing Man Group (Pty) Ltd v CCMA & Others (2020), an employee was charged with gross insubordination for failing to carry out a direct and reasonable instruction from his line manager. An instruction was issued to the employee to attend to a client’s site, which he had initially refused to obey unless his contract of employment and salary were adjusted, but had subsequently, after further discussions, carried out the instruction.

The CCMA initially found dismissal unfair, but the Labour Court emphasised that insubordination must be assessed in context, considering the seriousness of the defiance and its impact on the employment relationship.

In this case, it was deemed that the insubordination in question was not gross enough to warrant dismissal, given that the employee ultimately complied with the instruction. However, the Commissioner’s further conclusions that there were mitigating factors justifying the employee’s frustrations cannot be deemed reasonable in the circumstances of the case.

The Court found that there was nothing in the prior actions of the company that justified the employee’s response to hold the company to ransom over the salary adjustment. Even if there had been, the employee’s conduct could not be justified, especially in circumstances where refusal to attend to a client site might have had prejudicial results for the company, and where his grievance could have been dealt with and resolved by other means, other than a refusal to obey a reasonable and lawful instruction. Further, the employee was a senior employee and ought to have been aware of his obligations and the importance of being exemplary to his subordinates.

The mere fact that the employee was remorseful and had immediately carried out the instruction does not detract from the fact that he was insubordinate in the first instance. The employee’s conduct of refusing to obey a lawful and reasonable instruction constituted insubordination, which, however, on the facts, cannot be deemed to have been serious or gross enough to call for a summary dismissal. The company’s disciplinary code and procedure provided that ordinary insubordination was to be met with a final written warning.

The judgment is a reminder that the distinction between insubordination and gross insubordination is critical: ordinary insubordination may warrant warnings, while gross insubordination can justify dismissal.

Wilful and Persistent Disobedience

In the matter of Dladla and Others v Motor Industries Bargaining Council and Others, the Labour Appeal Court dismissed an appeal by five former Feltex Automotive employees who were fired after refusing to return to work during an unauthorised workplace gathering in 2018, ruling that their dismissal was fair and justified.

In a judgment handed down by a full bench, the Court confirmed the finding that the employees had failed to prove that the meeting was authorised or that they were entitled to ignore management’s instructions. The Court held that the instruction to return to work or leave the premises was lawful and reasonable.

The judgment noted that “The employees’ conduct went beyond mere refusal,” describing it as persistent, deliberate, and defiant insubordination that lasted several hours despite repeated warnings. The Court further ruled that dismissal was an appropriate sanction, given the seriousness of the misconduct and the damage caused to the trust relationship between employer and employees, particularly during a sensitive period.

The employer could not be expected to tolerate employees who openly and persistently flouted its authority. The sanction of dismissal was within the band of reasonableness.

The Employer’s Managerial Prerogative to Issue Instructions

In the matter of TMT Services and Supplies (Pty) Ltd v CCMA and Others, the Labour Appeal Court found that the employee’s failure to attend a meeting constituted gross insubordination.

The Labour Appeal Court held that the employer’s managerial prerogative to issue instructions to its employees is a principle that is protected by the misconduct known as insubordination. This principle ensures that the operational requirements of the organisation are not weakened by insubordination on the part of employees.

The Labour Appeal Court further held that the foundation of the employer and employee relationship is premised on the employer’s instructions being followed by the employee, and that it is intolerable that an employer is forced to engage in negotiations regarding day-to-day organisational arrangements with employees. The Court stated that the effect of the employee’s refusal to attend the meeting was to undermine the working relationship with her manager.

In conclusion, the Labour Appeal Court upheld that the dismissal was fair. The judgment is a reminder that an instruction that is fair and reasonable need not be repeatedly disobeyed by an employee before such action constitutes gross insubordination.

Principles for Employers

The following key principles must be considered by employers when assessing acts of insubordination:

1. Lawful and Reasonable Command: The instruction given to the employee must have been lawful, reasonable, and within the scope of their employment duties.

2. Clear Communication and Understanding: The employer must prove the employee was clearly made aware of the order or instruction, and understood what was required of them.

3. Wilful Disobedience (Intent): The refusal to obey must be deliberate, wilful, and intentional, rather than a result of misunderstanding, incapacity, or negligence.

4. Serious, Persistent, and Deliberate Challenge to Authority: The conduct must be egregious, such as a blatant, public refusal to obey or a direct challenge to the authority of a superior.

5. Impact: The action causes, or has the potential to cause, serious harm, safety hazards, or loss to the company.

6. Intolerable Employment Relationship: The act must be so serious that it destroys the trust and confidence between the employer and employee, making the continued employment relationship intolerable.

7. Progressive Discipline: Lesser forms of insubordination should be addressed with warnings before dismissal.

8. Context Matters: Courts and arbitrators consider the seriousness of the defiance, the employee’s position, and the impact on trust.

9. Procedural Fairness: Employees must be given notice of charges, a fair hearing, and an opportunity to respond.

10. Defences/Exceptions: An employee may not be guilty of insubordination if the instruction was unsafe, illegal, or unethical. Furthermore, if the employer acted with provocation or if the instruction was ambiguous, it may not constitute gross insubordination.

In conclusion, to prove an employee is guilty of gross insubordination, an employer must establish that the employee’s behaviour was not merely disobedient, but intentionally and seriously defiant of authority. Case law demonstrates that employers should ensure clear communication of instructions, maintain consistent disciplinary practices, and apply progressive discipline where appropriate.

Dismissal may be justified, but only when the misconduct is severe and due process has been followed. Employers should adopt clear disciplinary codes, ensure consistent application, and remain mindful of evolving jurisprudence.