16 January 2025

Insubordination and Insolence are two common forms of misconduct in the South African workplace. While they may seem similar at first glance, understanding their distinct definitions and implications is essential for any employer looking to maintain a disciplined and respectful work environment. Failing to recognise this distinction can result in inconsistent disciplinary actions, creating confusion and undermining the company’s efforts to uphold fairness and accountability.
INSUBORDINATION:
When an employee refuses the authority of their employer or another person in a position of authority over the employee, it constitutes insubordination. It can be defined as defying authority, resisting lawful and reasonable instructions, or disobeying, refusing, or failing to follow instructions. The Labour Appeal Court highlighted in Malamlela v. SA Local Government Bargaining Council & others (2018) 39 ILJ 2454 (LAC) that insubordination is a deliberate, persistent, substantial challenge to the employer's authority. It is distinguished by an intentional and calculated refusal to follow reasonable instructions. Given the significance of such conduct, dismissal may be warranted for certain instances of gross insubordination.
- Categories of Insubordination:
The Wasteman Group v South African Municipal Workers’ Union [2012] 8 BLLR 778 (LAC) case involved a legal analysis of the differentiation between general and gross insubordination. The ruling demonstrated that the distinction made is in the degree of defiance. An employee who partially defies an instruction but later complies is different from one who deliberately refuses to obey and challenges the authority of the employer, particularly in the presence of other employees. This differentiation is crucial in determining whether the misconduct warrants dismissal. Further examples of insubordination may include:
- Direct refusal: Directly refusing to follow a lawful and reasonable instruction;
- Disobedience: Ignoring or disregarding a lawful and reasonable instruction;
- Passive resistance: Intentionally delaying or avoiding completing a lawful and reasonable instruction;
- Challenge to authority: Questioning or disputing the validity of a lawful and reasonable instruction.
It was further made clear in Kock v Commission for Conciliation, Mediation & Arbitration & others (2019) 40 ILJ 1625 (LC), that repeated insubordination undermines the employment relationship, allowing the employer to forego proving a breakdown in the relationship. Similarly, in Prabashnie Naicker v Africa Flight Services, JR 843/17 (2019), consistent disobedience to a reasonable instruction led to a finding of gross insubordination.
- Reasonableness, Legality, and the Burden of Proof in Insubordination Cases
It was clearly established in Maripane v. Glencore Operations SA (Pty) Ltd (Lion Ferrochrome) (2019) 40 ILJ 1999 (LAC) that an instruction cannot violate legal requirements or contractual agreements. Therefore, ensuring that the instruction is lawful and reasonable is crucial to ensuring that disciplinary action taken against an employee for insubordination is fair. As such, refusing to comply with an instruction does not amount to insubordination if it is not reasonable or legal.
In terms of the burden of proof for insubordination, the matter in NUMSA & Another v Kromberg & Schubert (Pty) Ltd (2008) 29 ILJ 1343 (BCA), emphasized that for insubordination to be deemed serious and warrant disciplinary action, it must be proven that the insubordination was serious, persistent, and deliberate. The burden of proof lies with the employer to demonstrate that the employee was indeed defying a lawful and reasonable instruction.
INSOLENCE:
Insolence, on the other hand, is a form of disrespectful or offensive behavior towards an employer or a person in a position of authority. Insolence is repudiation by an employee of his or her duty to show respect and it can include conduct such as: Impudence, cheekiness, disrespect, or rudeness.
- Categories of Insolence:
- Rude or insulting language or terms: Using offensive or derogatory terms;
- Impudent actions: Engaging in disrespectful or cheeky behaviour;
- Contemptuous behavior: Displaying a lack of respect or showing disregard.
Repeated insolence may also be a dismissible offence, as held In Dorrainn Bailiff Investments (Pty) Ltd v CCMA and others (JR 86/2011, JA 8/2015) [2016] ZALAC 20, where the LAC recognised the cumulative effect of two previous final written warnings issued to an Employee who showed disrespect towards his Employer. In this matter, the Court held the dismissal to be substantively fair.
In conclusion, differentiating between insolence and insubordination whilst navigating the complex issues of workplace misconduct is essential to maintaining a respectful and disciplined environment in the South African workplace. While insolence indicates a pattern of disrespect that, although serious, may not always warrant harsh disciplinary actions. Insubordination on the other hand constitutes an intentional significant challenge to authority which may justify dismissal.
In order to ensure that disciplinary actions are consistent and fair, employers need to be particularly cautious in determining the nature and extent of each form of conduct. By understanding and applying these distinctions effectively, employers can uphold workplace standards, foster a positive work culture, and mitigate potential legal risks.
Contact Invictus for tailored guidance and assistance on how to effectively address insubordination and insolence in your business. Reach out to our office at 086 173 7263 or email us at admin@invictusgroup.co.za. Let us help you ensure your business remains compliant and well-informed.