The general view adopted by the CCMA and Labour Court thus far has been that insubordination only encapsulates a refusal to carry out the employer’s instructions and that disrespectful behavior should be separately categorized as insolence. There is a fine line between insubordination and insolence, and insolence may very well become insubordination where there is an outright challenge to the employer’s authority.

INSUBORDINATION

 

    • Insubordination may be described as resistance to, or defiance of, authority or a disobedience, refusal or failure to obey reasonable and lawful instructions.
    • Insubordination occurs when an employee refuses to carry out a lawful and reasonable instruction of the employer.
  • Disciplinary sanctions vary from written to final warnings or even dismissal – depending on the severity of the offence. The employer is entitled to dismiss the employee if such refusal is deliberate and serious in nature thus amounting to ‘gross insubordination’.

 

  • Every employee in terms of a contract of employment has a duty to obey all reasonable and lawful instructions by his/her employer. In other words, to do as he/she is told, within the parameters of what is accepted as being a reasonable and lawful.
  • 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.

 

INSOLENCE

    • Insolence means refusal by an employee of his/her duty to show respect. Insolence is an employee’s disrespectful behaviour towards the employer.
    • In the case of Palluci Home Depot (Pty) Ltd vs Herskowitz the Labour Appeal Court (LAC) found that the perception that insubordination is limited to the refusal to adhere to instructions is incorrect.
    • The LAC stated that insubordination may also be found to be present where disrespectful conduct poses a deliberate (wilful) and serious challenge to, or defiance of the employer’s authority, even where there is no indication of the giving of an instruction or defiance of an instruction.
    • It is, therefore, not essential for an instruction to be given or disobeyed to found a challenge to the employer’s authority. What the LAC also stated, was that dismissal would only be justified in cases of serious and deliberate acts, irrespective of whether they are categorised as acts of insolence or subordination.
    • Generally, insolence is regarded as less serious than insubordination.
    • In Commercial Catering & Allied Workers Union of SA and Another v Wooltru Ltd t/a Woolworths (Randburg) (1989) 10 ILJ 311 (IC), the court equated insolence with impudence, cheekiness, disrespect or rudeness.  
    • CONCLUSION
    •  
  • Unless the insolence or insubordination is of a particularly gross nature, an employer must issue a prior warning before having recourse to the final act of dismissal.
  • In the Pallucci Home Depot case the LAC concluded that, while the employee’s behaviour had been manifestly insolent, it did not constitute a serious, persistent and deliberate challenge to the employer’s authority.
  • A challenge to the employer’s authority, such as a refusal to adhere to a lawful and reasonable an instruction, amounts to insubordination.

 

Insolence may also be regarded as insubordination where it amounts to an outright challenge to the employer’s authority.