The rationale behind insubordination
At the core of any employment relationship sprouts a common law duty of an employee to render services to an employer. It creates a quid pro quo instance whereby an employee renders services to an employer in anticipation of remuneration, alternatively where an employer remunerates an employee in anticipation of services being rendered to him. This leads to a further expectation from an employer that if he is then so mandated to remunerate an employee in terms of this relationship, that he will then also be able to indicate the ambit of these services. In particular, the nature of the expected services, the manner in which said services should be rendered, in addition to the terms and conditions under which these services must be rendered. Should the employee fail or refuse to render said services in terms of what is expected and/or instructed, it stands to reason that an employer should have recourse.
The employer would certainly have recourse against the employee if he were not satisfied with the quality of the services being rendered, whether it is due to negligence[1] or poor work performance[2], yet the employer would also have further recourse in the event that an employee blatantly fails or refuses to follow a lawful and reasonable instruction. The term used to define said failure or refusal is commonly known as insubordination. To establish whether an act of insubordination had occurred it is of paramount importance to ascertain whether the instruction refused by the employee was indeed a lawful and reasonable instruction. The extent of the refusal must further be established and whether the instruction was given by a person who is authorised to give such an instruction. Further arguments also indicate 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 willfulness by the employee[3].
It is therefore prudent to establish a test in order to consider whether actions of an employee may be deemed as being insubordinate, whether grossly or not, in the background of South African jurisprudence. This will entail an inquisitive study of leading case law in the background of assorted merits.
How gross is gross?
The extent of insubordination may be the deciding factor between a dismissal of an employee or mere progressive discipline is applied.[4] This is imperative, as it may also be the differentiating factor to whether an employer will have to defend a matter of unfair dismissal or an unfair labour practice at the CCMA or relevant bargaining council.
Various factors may be considered to establish whether a refusal by an employee to follow instruction will be deemed as gross or not.[5] This may include, but is not limited to:
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the manner in which the refusal is expressed.
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the position of the person whose authority is repudiated.
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the reason for the employee’s refusal to comply; and
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whether this conduct is isolated or not.
It is true that the majority of disciplinary codes and policies would warrant a sanction of dismissal for gross insubordination, yet special consideration should be given to the aforementioned factors. In addition, hereto the sanction should be considered in the background of the framework of the Labour Relations Act 66 of 1995[6] which indicates that progressive discipline must be considered prior to a sanction, and lastly the factors laid out in the Sidumo [7] matter.
Persistence isn’t always key.
A misconception that every so often arises is that a single act of refusal may not be construed as gross insubordination. Despite certain case law[8] which would use this as a dominant factor to establish the severity of insubordination, this notion was adequately addressed in the matter of TMT Services and Supplies[9]. It was indicated that defiance of authority can be proven by a single act of defiance.[10] There is no necessity for high drama and physical posturing to be present.[11] The employer prerogative to command its subordinates is the principle that is protected by the class of misconduct labelled “insubordination” and addresses operational requirements of the organization that ensure that managerial paralysis does not occur.[12]
More simply stated, the consideration of persistence of insubordination would be more adequately applied in instances where it is not a clear refusal or act of defiance, but rather a persistent neglect to carry out instructions.
It’s not just what you said, but how you said it!
The manner in which an employee refuses an instruction may be noteworthy to establish the severity of such a refusal. In instances where the refusal seeks to challenge the authority[13] of an employer or senior for example, it might be sufficient to establish the state of mind of an employee whilst refusing an instruction. This was clearly illustrated in the matter of Msunduzi Municipality v Hoskins.[14] In the aforementioned matter, an employee refused to abide by an instruction to refrain from representing fellow employees in disciplinary proceedings. This instruction was given due to the fact that the employee was a Human Resource Manager and therefore acting with a conflict of interest. In reply, the employee drafted a response where he not only refused to obey this instruction but further challenged the authority of his employer by posting his letter of refusal on notice boards and sharing it with fellow employees. The submissions in this letter included inter alia averments such as “please proceed with your threat to take further steps in this matter if you dare.” and “… your faceless, spineless, nameless advisors/managers need to correctly advise you that this is the sixth attempt to silence me.”
The act of defiance or manner in which an instruction is refused needn’t be as robust as indicated above. Any devious attempt to avoid an instruction given may also lead to a trust relationship being forfeited. In instances where an employee is instructed to attend a meeting and forced postponement of said meeting by devious means, it will also certainly lead to a negative inference being drawn. In the matter of TMT Services and Supplies[15], it was held that:
“The evidence demonstrates a contrived, and indeed devious manipulation by the employee to achieve a deferment of the meeting. It involved the defiance of an express direct and unequivocal instruction. The employer/employee relationship dynamic is premised on instructions being obeyed. It is intolerable that an employer is forced to negotiate day to day organisational arrangements with employees. The effect of the refusal was to undermine the working relationship with her employer whose trust she forfeited.”
Defiance of Authority: Insubordination vs Insolence.
The common law duty of each employee to be respectful and obedient refers to a duty which each employee is burdened with towards an employer and/or a person of seniority. Insofar as an employee may be charged with insubordination, the question which would certainly arise is whether or not the instruction was given by a person of authority. It may often come about that employees retrospectively indicate that their actions may not be construed as insubordination, as they did not perceive the person who issued the instruction to be their manager or employer at the time.
This also begs the question of whether such a defiance of authority must be deemed as insubordination or insolence.[16] To this effect, one must consider the views expressed in Palluci Home Depot (Pty) Ltd v Herskowitz and Others.[17] In this instance, the line between insubordination and insolence was narrowed even further by indicating that:
“It is clear from this finding that the Labour Court failed to appreciate that the refusal to carry out instruction is not the only basis upon which to found a charge of insubordination. The offence of insubordination in the workplace has, in this regard, been described by our courts as a wilful and serious refusal by an employee to obey a lawful and reasonable instruction or where the conduct of an employee poses a deliberate (willful) and serious challenge to the employer’s authority. Whereas in some cases defiance of instruction may indicate a challenge to the authority of the employer, this is not so in every case. Insubordination may also be found to be present where disrespectful conduct poses a deliberate (willful) and serious challenge to or defiance of the employer’s authority, even where there is no indication of the giving of 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”.
Simply put, this notion seeks to justify that certain acts of gross insubordination needn’t be as a result of a failure by an employee to follow a reasonable instruction, nor that an actual instruction was indeed provided, but rather that the disrespectful actions of the employee constitute a deliberate (willful) and serious defiance of the authority of the employer. Despite this view, the importance of a clear distinction between insolence and insubordination is still identified in the matter of CCAWUSA and Another v Wooltru Ltd t/a Woolworths as it still constitutes two separate offences.[18] The view is also shared that although an employee can be both insolent and insubordinate at the same time, he or she can be insolent without necessarily being insubordinate.[19]
Despite a thin line between the two offences, Grogan rightfully indicates that a distinction is overly technical. He provides a certain rationality in his analysis of the Wooltru[20] matter by indicating that where the Court equated insolence with impudence, cheekiness, disrespect or rudeness and distinguished ‘mere’ insolence from insubordination but then opined that the distinction is overly technical as both forms of misconduct give expression to a repudiation of authority, which rests as much on respect as it does on obedience.[21] He provides further clarity by indicating that the test for both forms of misconduct is whether the employee’s conduct demonstrates an intention to challenge the employer’s authority.[22]
Yes… it was requested, but was it lawful and reasonable?
Not withstanding the common law duty of an employee to be respectful and obedient, the duty of an employee to follow an instruction from an employer is subject to said instruction being lawful and reasonable. Where an employer unilaterally imposes short time, albeit, after consultation with employees, it would be unreasonable to dismiss said employees for failure to abide by a new roster where a matter was referred by said employees under section 64(4) of the Labour Relations Act[23]. Even more so after the employer failed to comply in terms of 64(5) in terms of the Labour Relations Act.[24] This was the general view held by Judge Steenkamp in re ICHAWU v CCMA[25] whilst he also considered that the employer could have rather sought to approach a change of the terms and conditions, if so operationally required, in terms of section 189 of the Labour relations Act.[26] This is only one illustration of how instruction would be deemed as being unreasonable. Should an employer instruct an employee to operate in an unsafe manner in contradiction with any legislation, such an instruction would likewise not be enforceable.
It’s not you…it’s me?
Employers should always be mindful of their interactions with employees prior to proceeding with disciplinary measures for acts of insubordination or insolence.[27] It is of paramount importance to establish that the insubordination or insolence was serious, willful and deliberate.[28] In instances where unauthorised deductions are made from an employee, and further submissions or queries of the said employee were simply ignored, considerations may be given that such an employee was not ultimately acting willful or deliberate, but might have been provoked to a certain extent. This was the view put forward in Palluci Home Depot (Pty) Ltd v Herskowitz and Others[29] who expressed the following view:
“Nor, in my view can the first respondent’s conduct towards Lambrecht be described, on the evidence, as a “calculated challenge” to the employer’s authority,18 since it was neither deliberate nor intentional. The first respondent had been provoked by Lambrecht in two respects: firstly, by the unlawful deduction of monies from her salary which, it is common cause was the basis of the impasse, and secondly by the condescending manner in which Lambrecht had turned his back to her whilst she attempted to discuss the issue of the deduction with him. This resulted in nothing more than, at best, an isolated knee jerk in the heat of the moment by the first respondent − who had been provoked by her employer. It is clear from the evidence that she did not intend to challenge or defy Lambrecht’s authority, but in her anger at the deduction coupled with Lambrecht’s refusal to discuss the issue with her by inter alia condescendingly turning his back to her, she reacted precipitously by demanding, in a raised voice, that he should not turn his back to her while she was discussing the issue of the deduction with him.”
Insubordination must therefore be a true act of defiance of authority that is deliberate. Despite instances as indicated above where provocation from the side of the employer was abundantly clear. Employees should accordingly not see provocation as the proverbial “holy grail” and as a remedy or reason to challenge an employer. Each matter will be established on its own merits. Although possible pitfalls may be identified for considerations of acts of insubordination, nothing will do away with the duty of an employee to be obedient. It is the basis of each employment relationship, the absence of which would undermine the very purpose of a quid pro quo relationship.
[1] Acts of negligence would rather be approached by testing a deviation of the required standard of skill and care of the particular employee. [2] Acts of Poor Work Performance must rather be approached by following guidelines provided in Schedule 8 of the Code of Good Practice: Dismissals, in particular item 9 thereof. [3] John Grogan, Workplace Law, Juta (12ed), Chapter 12, para 3.8, pp 125–126; TMT Services and Supplies (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others [2019] 2 BLLR 142 (LAC). [4] In re Palluci Home Depot (Pty) Ltd v Herskowitz and Others [2015] 5 BLLR 484 (LAC) it was held that 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. [5] Kate Staude Business conduct and ethics policies https://www.mylexisnexis.co.za/Index.aspx accessed 23 May 2020. [6] Schedule 8 of the Code of Good Practice: Dismissals [7] Sidumo and another v Rustenburg Platinum Mines Ltd and others [2007] 12 BLLR 1097 (2008 (2) SA 24) (CC). [8] Repeated refusals was the substance of the insubordination is PSA of SA obo Khan v Tsabadi NO and others (2012) 33 ILJ 2117 (LC); in re Naicker v Commision for Conciliation Mediation and Arbitration and Others (JR843/17) [2019] ZALCJHB 116 the Court also considered a failure of an employee to follow an instruction on eight separate occasions as more than a mere mistake. [9] TMT Services and Supplies (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others [2019] 2 BLLR 142 (LAC). [10] Old LAC decision in Acrylic Products (Pty) Ltd v CWIU and another [1997] 4 BLLR 370 (LAC). [11] Msunduzi Municipality v Hoskins (2017) 38 ILJ 582 (LAC). [12] Scoble, Law of Master and Servant in South Africa, Butterworth, Durban (1956) p 145. [13] In re Naicker v Commision for Conciliation Mediation and Arbitration and Others (JR843/17) [2019] ZALCJHB 116 the court also considered acts of insolence where the employee questioned the abilities and competencies of her manager when issuing instructions. [14] Msunduzi Municipality v Hoskins (2017) 38 ILJ 582 (LAC). [15] TMT Services and Supplies (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others [2019] 2 BLLR. [16] This was thoroughly analysed in re Sibanda v Pretorius N.O and Others (JR2637/16) [2019] ZALCJHB 84. The Court deemed it prudent to apply the facts of the matter with the views established in the Palluci Home Depot matter as well as the matter of CCAWUSA and Another v Wooltru Ltd t/a Woolworths (1989) 10 ILJ 311 (IC). [17] Palluci Home Depot (Pty) Ltd v Herskowitz and Others (2015) 36 ILJ 1511 (LAC) [18] CCAWUSA and Another v Wooltru Ltd t/a Woolworths (1989) 10 ILJ 311 (IC). [19] CCAWUSA and Another v Wooltru Ltd t/a Woolworths (1989) 10 ILJ 311 (IC). [20] CCAWUSA and Another v Wooltru Ltd t/a Woolworths (1989) 10 ILJ 311 (IC). [21] Grogan Dismissal 3rd Edition (Juta, 2017) at p285. [22] Grogan Dismissal 3rd Edition (Juta, 2017) at p285. [23] 64(4) of the Labour Relations Act states that any employee who, or any trade union that, refers a dispute about a unilateral change to terms and conditions of employment to a council or the Commission in terms of subsection (1) (a) may, in the referral, and for the period referred to in subsection (1)(a) require the employer not to implement unilaterally the change to terms and conditions of employment; or (b) if the employer has already implemented the change unilaterally, require the employer to restore the terms and conditions of employment that applied before the change. [24] 64(5) The employer must comply with a requirement in terms of subsection (4) within 48 hours of service of the referral on the employer. [25] Independent Commercial Hospitality and Allied Workers Union and others v Commission for Conciliation, Mediation and Arbitration and others [2015] 9 BLLR 958 (LC) [26] The best practise would have been to embark on formal retrenchment consultations and offer the new roster as an alternative to dismissals. [27] Despite previous distinctions being drawn between insolence and insubordination, it is prudent to address both forms as misconduct as provocation of an employee may lead to mitigating considerations with both offences. [28] National Union of Public Service & Allied Workers and Others v National Lotteries Board2014 (3) SA 544 (CC). [29] Palluci Home Depot (Pty) Ltd v Herskowitz and Others (2015) 36 ILJ 1511 (LAC).
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