Insubordination dismissals – insubordination must be gross.

Insubordination can take on many forms, but to justify dismissal it must be serious, persistent and deliberate.

By Nicolene Erasmus (Director Labour Guide)

2023/01

The Code of Good Practice: Dismissal lists gross insubordination as a permissible ground for dismissal. “Generally, it is not appropriate to dismiss an employee for a first offense, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or willful damage to the property of the employer, willful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination.”

In Independent Risk Distributors SA (PTY) Ltd (JR 1906/19), a sales representative was dismissed for gross insubordination after challenging and/or undermining the authority of the company’s CEO during a staff meeting by questioning and/or challenging an instruction issued by the CEO in the presence of his colleagues. During the meeting, the CEO had instructed all the sales representatives to go home and reflect on their performance and return to the office the next day, whereafter the employee proceeded to challenge and/or undermine the authority of the CEO.

Having considered the evidence of the employer’s witnesses, the arbitrator concluded that the employee’s dismissal was unfair and ordered reinstatement. The first witness testified that the manner in which the employee questioned the CEO (who was not called to testify) posed a problem. The second witness confirmed that the employee asked questions and when the CEO tried to speak, the employee interrupted with an unacceptable and disrespectful tone. The employer’s third witness testified that the employee did ask questions after they were instructed to go home, but she did not think his conduct was inappropriate.

Considering the employer’s application for review, the Labour Court pointed out that the enquiry into the gravity of the specific insubordination considers three aspects: the action of the employer prior to the deed, the reasonableness of the instruction, and the presence of wilfulness by the employee.

Acts of mere insolence and insubordination do not justify dismissal unless they are serious and willful. The sanction of dismissal is reserved for instances of gross insolence and gross insubordination, or the wilful flouting of the employer’s instructions. In this case, the employee’s questions at the meeting were aimed at seeking clarification regarding why he was also being sent home, despite not having performed poorly, and once that clarification was given, he complied with the instruction to go home. His disrespect or repudiation was not serious, persistent and deliberate, and, therefore, did not amount to gross insubordination.

In Masscash (Pty) Ltd t/a Jumbo Cash and Carry CA05/21, the employer appealed against the judgment and order of the Labour Court in which it reviewed and set aside the arbitration award and substituted it with an order that the employee must be retrospectively reinstated.

The employee, Mr Mtsotsoyi, was found guilty of gross insubordination for defying the instruction to provide an account of the business and private trips he made with the company vehicle. Two witnesses testified that despite them explaining the instruction to the employee on at least three occasions, reducing it to writing, and giving him a fully paid day off to gather the requested information as well as three extensions to comply, he failed to do so. The arbitrator concluded that Mr Mtsotsoyi was grossly insubordinate in not carrying out the instruction he was given and that his dismissal was substantively fair. The Labour Court, however, held that the employee did comply with the instruction he was given, albeit not on time and in a way the employer found to be substandard.

Referring to TMT Services and Supplies (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others, the Labour Appeal Court pointed out that it is not necessary for the instruction to be issued on numerous occasions for an act of insubordination to occur. A single act of defiance by an employee will be sufficient for insubordination to occur. The seriousness of Mr Mtsotsoyi’s misconduct was central to the arbitrator’s finding that dismissal was an appropriate sanction. The same instructions were repeatedly explained to him and he was afforded ample time to comply, yet he wilfully defied the instruction. The Labour Court, accordingly, erred in concluding that the sanction of dismissal was inappropriate.

This article does not constitute legal advice and is based on the authors interpretation of legislation and relevant case law. For an informed opinion and/or assistance with a labour related matter, readers are encouraged to arrange a formal consultation with the author.