Insubordinate or Insolent Behaviour will get you dismissed

By Magate Phala

Insubordination occurs when an employee refuses to accept the authority of his or her employer or of a person in a position of authority over the employee. It may be described as resistance to, or defiance of, authority or a disobedience, refusal or failure to obey reasonable and lawful instructions.
Insolence means repudiation by an employee of his/her 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.
As a general rule, for insubordination to constitute misconduct justifying a dismissal it has to be shown that the employee deliberately refused to obey a reasonable and lawful instruction by the employer.
The essential elements for insubordination according to Brassey et al, The New Labour Law, page 430 are as follows;

· It should be evident that an order, which may even be in the form of a warning, was given;

· The order must be lawful;

· The reasonableness of the order should be beyond reproach; The refusal or failure to obey must have been serious enough to warrant dismissal.

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 Transport & General Workers Union and Another v Interstate Bus Lines (Pty) Ltd (1988) 9 ILJ 877 (IC). an employee tore up the notes of the chairman at a disciplinary enquiry into alleged misconduct.
The Court held that his behaviour amounted to “gross insubordination” and although the court could not find that it was calculated to challenge the respondent’s authority, it nevertheless had the effect of disregarding the respondent’s authority and of making a mockery of the respondent’s disciplinary procedure.
The Court accordingly found the dismissal to have been substantively fair.
In Commercial Catering & Allied Workers Union of SA and Another v Wooltru Ltd t/a Woolworths (Randburg) (1989) 10 ILJ 311 (IC). It was held that:
“the offence of insubordination is constituted by the following: When the employee refuses to obey a lawful and reasonable command or request and the refusal is wilful and serious (wilful disobedience), or when the employee’s conduct poses a deliberate (wilful) and serious challenge to the employer’s authority.
In NUMSA & Another v Kromberg & Schubert (Pty) Ltd (2008) 29 ILJ 1343 (BCA) , the court found that the 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.
In Polyoak Packaging (Pty) Ltd v Siquibo NO and Others( unreported) case number 236/2008, it was said that:
“As a general principle it may be stated that the breach of rules laid down by an employer or the refusal to obey an employer’s lawful and reasonable order is to be viewed in a serious light and may in given circumstances even justify summary dismissal. However, the presence of certain prerequisites is required. In the first place;
[a] it should be evident that an order, which may even be in the form of a warning, must in fact have been given. . . . In the second place;
[b] it is required that the order must be lawful; an employee is therefore not expected to obey an unlawful order such as to work illegal overtime.
Thirdly, [c] the reasonableness of an order should be beyond reproach and will be enquired into: in cases before the court the order or request has sometimes been found to be reasonable and at other times to be unreasonable. In addition, it is required . . . that the refusal to obey must have been serious enough to warrant dismissal.”
In Johannes v Polyoak Industries (1998) 1 BLLR 18 (LAC). the employee refused to complete certain quality checklists until the employer attended to her complaints.
She admitted that this amounted to an offence, but claimed that the employer had acted unfairly when it had dismissed her because she had merely asked for a small indulgence.
The court was unimpressed, saying that “it must have been clear to the employee that her lone crusade would end in disaster. The employer could not reasonably be expected to endure such defiance”.
In Clinix Private Hospital Soweto (Pty) Ltd v Ralefeta & Others (2007) 5 BLLR 455 (LC), the court set aside an award in which the commissioner had held that the dismissal of an employee for insubordination was unfair and ordered reinstatement.
The employee was dismissed for having sworn and ultimately throwing a notice to attend a disciplinary hearing at the manager during an altercation.
The reason for setting aside the award was that the commissioner had ignored the fact that the employee was on a final written warning for a similar offence.
John Grogan noted the following on page 51 of his Book Workplace Law (Juta, 2009) “employees are obliged to respect and obey their employers because lack of respect renders the employment relationship intolerable and disobedience undermines the employer’s authority”.
Magate Phala specialises in Labour Law and writes in his own private capacity.