Insubordination occurs when an employee refuses to accept their employer’s authority or a person in a position of power over the employee.
It may be described as resistance to, or defiance of, authority, disobedience, refusal, or failure to obey reasonable and lawful instructions.
Insolence means repudiation by an employee of their duty to show respect. Insolence is an employee’s disrespectful behaviour towards the employer.
The test for both forms of misconduct is whether the employee’s conduct demonstrates an intention to defy the employer’s authority. In (Wooltru. Case 1989), the court equated insolence with impudence, cheekiness, disrespect or rudeness.
What is the legal definition?
The Labour Appeal Court in CWIU and another v SA Polymer Holdings Pty (Ltd) t/a Megapack (1996), defined insubordination as “a wilful and serious refusal to obey a lawful and reasonable command, or conduct by the employee which poses a deliberate and serious challenge to the employer’s authority”.
In a recent case of TMT Services and Supplies (Pty) Ltd v CCMA and 2 Others [JA32/2017], the Labour Appeal Court recently had to clarify the issue of when dismissal would be appropriate for acts of insubordination.
TMT Services and Supplies (Pty) Ltd (“the employer”) dismissed an employee for gross insubordination after the employee refused to obey a lawful and reasonable instruction given to her by her manager.
The instruction was for the employee to attend a meeting regarding her poor performance. The institution instructed the employee on the 25th of April 2019, her manager gave her the instruction to participate in a meeting at 7:00 a.m.
The next day to discuss the findings of an audit that had been conducted on the employee’s performance. The manager gave the instruction four times, but the employee later denied that no instruction was issued. (Coetzer, Matloko, 2019)
The employee wanted the meeting to be postponed by sending an email and an SMS to her manager stating that she was not comfortable with the presence of another employee at the meeting. Furthermore, she stated that the employer had given no formal notice to her to attend the meeting and that she had not been provided with an agenda for the meeting.
The employee failed to attend the meeting, and instead, the employee sent another email at 7:16 a.m, the morning of the meeting, informing her manager that she was not on the premises where the meeting was scheduled to take place. Still, she was at the employer’s depot. The manager chose to postpone the meeting with the employee. (Coetzer, Matloko, 2019)
A disciplinary inquiry was convened and the employee was dismissed for insubordination.
The employee referred the matter to the CCMA, and at the arbitration, the Commissioner held that the employee had indeed defied an instruction issued by her manager and that her dismissal was fair. The employee then took the matter on review to the Labour Court.
Escalating matters
The Labour Court set aside the arbitration award, finding that the Commissioner’s award was unreasonable. The Labour Court found in favour of the employee and ordered the employer to pay the employee her remuneration for the remaining portion of her fixed-term contract from the date she was dismissed, which added up to approximately 3 years’ worth of her remuneration.
The Labour Appeal Court (LAC) stated that in the inquiry into the gravity of insubordination, there need to be three aspects taken into consideration;
• Action of the employer prior to the deed.
• Reasonableness of the instruction.
• Presence of wilfulness by the employee.
The LAC held that the only challenging aspect was the presence of willfulness on the part of the employee.
The LAC found that the employee’s failure to attend the meeting forced the postponement of the meeting. The LAC also clarified that the mere repetition of an instruction does not affect the giving of instruction and its defiance.
In conclusion, the LAC upheld the appeal and confirmed the Commissioner’s finding that 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. Employees are required to follow the instructions of their employers at all times. A failure to do so may ultimately result in their dismissal.
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