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Dismissal For Insubordination

Dismissal For Insubordination

Employees have a duty to obey the reasonable instructions of their employer. Failure or refusal to do so may amount to insubordination. 

Insubordination is defined as being “disobedient to authority”. In the workplace context, it equates to disobedience, defiance of or resistance to authority or the refusal or failure to obey an employer’s reasonable and lawful instruction.  

The Code of Good Practice: Dismissal lists gross insubordination as a ground allowing for dismissal. Section 4 reads: 

“Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct [include] … gross insubordination.” 

As such, the degree to which an employee refuses to submit or obey must be examined to determine, based on each case’s circumstances, whether it constitutes “gross” insubordination justifying dismissal.  

It must be distinguished from cases where refusal to obey an instruction may be justified and may not even constitute misconduct. Such would be where the instruction is unlawful or unreasonable or could lead to foreseeable damage or injury to property or person. 

Furthermore, mere insolence (i.e. cheek, rudeness, or contempt) may not necessarily amount to insubordination unless it challenges an employer’s authority. This is according to the decision found in Pallucci Home Depot (Pty) Ltd v Herskowitz and Others (2015) 5 BLLR 484 (LAC), where it was stated: 

“Insubordination may also be found to be present where disrespectful conduct poses a deliberate (willful) persistent and serious challenge to, or defiance of the Employer’s authority even when there is no indication of an instruction having been issued or defiance of an instruction. It is therefore not always essential for an instruction to be given or disobeyed to find a challenge to the Employer’s authority.” 

It is thus a serious and wilful act of disobedience that an employer cannot reasonably be expected to endure, which justifies terminating the employment relationship, as it has become intolerable.  

This then encompasses behaviour such as rudeness, rebelliousness or disobedient gestures, one’s manner or attitude, inappropriate or dismissive gestures, ignoring or walking away, abusive language, disrespectful behaviour to superiors, or other forms of misconduct or harassment. 

To justify dismissal, the degree of insubordination or insolence must be serious, persistent, and deliberate, as numerous court decisions emphasise. For example, in SAMWU obo Felicia v CCMA and Others (JR 2195/14) (2016) ZALCJHB 338, the Court held that the employee’s defiance must be ‘gross’ to justify dismissal. Furthermore, the insubordination must be serious, persistent, and deliberate, and the employer needs to offer proof that the employee was guilty of disobeying an instruction. 

Dismissal is unjustified unless an employee’s actions are serious and willful in their insubordination and insolence. The penalty of dismissal is reserved for cases of gross insubordination and gross insolence or the wilful disregard of an employer’s instructions. 

Employees are initially to be warned, either verbally or in writing, when insubordination or insolence first arise, with dismissal being the consequence in cases of continued violations. 

If you have any questions about other Labour or Land issues, contact McCarthy Attorneys Inc. on (033) 266 6170 or  via email