INSUBORDINATION VS INSOLENCE
The Courts have described insolence as conduct which is offensive, disrespectful, impudent, cheeky, rude and insulting or contemptuous.
While insubordination, on the other hand, is described as a willful and serious refusal by an employee to obey lawful and reasonable instructions or in the alternative a deliberate and serious challenge to the employer’s authority.
The Courts have stated that dismissal is justified in instances of insubordination or where the insolence is both willful and serious.
In determining whether or not a dismissal is an appropriate sanction the Courts will consider whether the employee was provoked by the employer.
BREAKDOWN OF EMPLOYMENT RELATIONSHIP
Where the employee is guilty of deception or dishonesty and in addition shows no acceptance of wrongdoing or remorse the courts have held that there has been a breakdown of the employment relationship. A dismissal in that instance would be a reasonable outcome.
EMPLOYEE v INDEPENDENT CONTRACTOR
Yet again the Courts have had to determine the distinction between an independent contractor and an employee. In the matter before the Labour Appeal Court the Court was asked to decide whether the driver in “owner/ driver schemes” are truly independent or whether they are still employees. The Court found that there was a clear and express intention that the relationship is not one of employment but rather one where the driver renders a service to the operator. In making this determination the court examined the levels of control which it stated were essential and intrinsic to the nature of the service performed by the operator to its clients and which it, the operator, in turn, delegated to the owner drivers.
Separately the Labour Court held that foreign language interpreters in Court were not employees of the Department of Justice. It assessed whether or not there were contracts in place, what services the interpreters were paid for, their working hours, benefits which they may or may not have received and whether or not they were subject to supervision and discipline.
ONUS OF PROOF
In a matter involving sexual harassment, the Court had to determine the probabilities of the complainant’s case as against that of the dismissed employee. The Court found that their complainant was inconsistent when presenting the case and dismissed the allegations made against the employer.
The Court has confirmed that where an employee is a member of a team and those members have each failed to ensure that the team in its entirety met its obligations to the employer, in this case, that there were no stock losses, the termination of employment of each individual would be fair.