Insolence vs Insubordination: Why the Distinction Matters for Employers

Recent Labour Court and Labour Appeal Court decisions clarify when disrespect becomes defiance, and when dismissal is justified.

Insolence and insubordination often appear together in workplace disciplinary matters, but they are not the same offence. Insolence generally refers to rude, disrespectful, or contemptuous behaviour towards an employer or manager. Insubordination, by contrast, involves the deliberate refusal to obey a lawful and reasonable instruction.

2026/07

While these forms of misconduct are closely related, Courts have repeatedly emphasised that the distinction between them is important when determining whether dismissal is appropriate. Recent judgments of the Labour Court and the Labour Appeal Court of South Africa reinforce this principle.

The Facts

In Aveng Africa (Pty) Ltd v Burger and Others (JR1169/22) [2025] ZALCJHB 403, the Court confirmed that there is a meaningful legal distinction between insolence and insubordination, even though the line between them may sometimes be fine. The judgment emphasised that an employee may be both insolent and insubordinate at the same time. However, an employee may also be insolent without necessarily being insubordinate.

The Court further recognised that insolence can sometimes be considered a competent verdict where insubordination is alleged.

Legal Framework

South African labour law distinguishes between these two forms of misconduct largely based on intention and conduct.

Insolence generally refers to behaviour that is:

• Disrespectful;
• Impertinent; and/or
• Contemptuous toward authority.

Insubordination, however, involves something more serious: a deliberate and wilful refusal to comply with a lawful and reasonable instruction from an employer.

The distinction becomes particularly important when determining whether the conduct warrants dismissal or whether progressive discipline should be applied first.

Case Law

In Palluci Home Depot (Pty) Ltd v Herskowitz and Others (2015) 36 ILJ 1511 (LAC), the Labour Appeal Court of South Africa held that although the employee’s conduct was clearly insolent, it did not amount to insubordination.

The Court found that the employee’s reaction occurred in the heat of the moment after being provoked. As a result, it was not considered a serious, deliberate, and persistent challenge to the employer’s authority. The Court concluded that disrespectful conduct will justify dismissal only if it is both wilful and serious.

A similar principle emerged in Neumann v Western Cape Education Department (Sanction) [2026] ZALCCT 1, where the Labour Court of South Africa found the employee guilty of insolence but not gross insubordination.

The Court considered several mitigating factors:

• The conduct was a single incident.
• The employee had no prior disciplinary record.
• Progressive discipline had not been applied.
• Performance had improved.
• The employment relationship had not irretrievably broken down.

The employer’s own conduct, including offering demotion and not suspending the employee, further undermined the argument that dismissal was necessary.

By contrast, in Dladla v Motor Industries Bargaining Council [2026] ZALAC 4, the Labour Appeal Court of South Africa found that dismissal was justified.

Employees had persistently refused to follow a lawful instruction for several hours, ignored written ultimatums, and collectively challenged the employer’s authority. The Court held that this sustained and deliberate defiance constituted gross insubordination.

Application to Employers

These decisions highlight several key principles.

First, employers must clearly distinguish between insolence and insubordination when charging employees.

Second, the seriousness of the conduct must be evaluated in context, including:

• The employee’s intention.
• Whether the conduct was persistent.
• Whether the authority of the employer was deliberately challenged.
• Whether the conduct was provoked or isolated.

Third, progressive discipline remains an important consideration in determining an appropriate sanction.

Practical Steps for Employers

Employers should approach these situations carefully.

1. Identify the correct charge

Determine whether the conduct constitutes disrespect (insolence) or refusal to obey an instruction (insubordination).

2. Assess the seriousness of the conduct

Consider whether the behaviour was deliberate, persistent, or part of a broader challenge to authority.

3. Examine surrounding circumstances

Provocation, emotional reactions, and workplace tensions may influence the assessment.

4. Apply progressive discipline where appropriate

Unless the conduct is gross, warnings may be required before dismissal.

5. Ensure instructions are lawful and reasonable

A refusal to comply can only amount to insubordination if the instruction itself was legitimate.

Key Takeaways / Conclusion

Insolence and insubordination may appear similar, but the distinction between them carries significant disciplinary consequences. Courts consistently emphasise that dismissal should be reserved for conduct that reflects a serious, wilful, and persistent challenge to an employer’s authority.

Where misconduct falls short of that threshold, progressive discipline and contextual assessment remain essential.

For employers, the lesson is clear: the correct classification of misconduct, combined with a fair disciplinary process, will ultimately determine whether a dismissal decision can withstand legal scrutiny.

By Hemanth Haricharan, Dispute Resolution Official (CEO SA)

Article published with the kind courtesy of the Consolidated Employers Organization of South Africa – www.ceosa.org.za

This article does not constitute legal advice. For an informed opinion and/or assistance with a labour-related matter, you are encouraged to arrange a formal consultation with the author.

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