There comes a time when an employee may want to speak up to their superiors in the workplace; however, there is a fine line between speaking one’s mind, being rude, or being outright insubordinate.<\/p>\n
Labour law experts Bongani Masuku and Thato Maruapula from Cliffe Dekker Hofmeyr said that in South African law, insubordination is the wilful failure or refusal to obey a lawful and reasonable instruction given by a superior.<\/p>\n
This is different from insolence, which is rudeness, cheekiness or disrespectful behaviour, said the two. A recent case from 11 October 2022 provides insight into the dismissal of an employee for gross insubordination.<\/p>\n
The Labour Court in Independent Risk Distributors SA Ltd v CCMA and Others<\/em> dealt with an application for the review of an arbitration award in which the commissioner found that the dismissal of the employee for gross insubordination was unfair as the employee was only guilty of asking for clarity during a staff meeting.<\/p>\n Facts<\/strong><\/p>\n The company’s CEO scheduled a meeting with the employee and their sales co-workers to discuss the department’s underperformance.<\/p>\n “The meeting culminated in the CEO issuing an instruction to all sales representatives, including (the employee), to go home for the day and reflect on their poor performance,” said the experts.<\/p>\n The employee subsequently challenged the instruction uncourteously, questioning why they were to go home in light of their performance being above par. The employer then charged the employee with gross insubordination and dismissed them upon being found guilty.<\/p>\n Cliffe Dekker Hofmeyr said that after arbitration proceedings, the dismissal of the employee was found unfair, with the commissioner concluding that the employer failed to establish gross insubordination on their part.<\/p>\n “In short, the arbitrating commissioner concluded that what (the employee) had done was not misconduct but merely seeking clarity from the CEO on the instruction.”<\/p>\n The employer then challenged this finding on review before the Labour Court (LC). The LC used a test called the Sidumo test – asking whether the arbitrating commissioner’s decision was one that a reasonable decision maker could reach given the material evidence before them.<\/p>\n The LC then continued to consider the principles of the misconduct of insubordination.<\/p>\n The court held that “insubordination” essentially refers to: A challenge to a superior’s authority by failing or refusing to carry out an instruction issued by the superior.<\/em><\/p>\n On the facts, the LC agreed with the arbitrating commissioner that the employee’s conduct did not amount to gross insubordination as they had merely asked questions to obtain clarity on the instruction issued<\/strong>.<\/p>\n Moreover, after obtaining that clarity from the company’s general manager, the employee then complied and left for home for the day. For these reasons, the commissioner’s arbitration award was a decision that a reasonable decision maker could have reached on the material placed before them, said the legal experts. The review application was dismissed, with costs.<\/p>\n Findings<\/strong><\/p>\n “In short, where an employee does not deliberately and persistently refuse to comply with a superior’s instruction, they can hardly be found guilty of insubordination.”<\/p>\n What is required is an unrepentant intransigence (no regret or effort to change) shown against good instruction issued by a superior and no less.<\/p>\n Moreover, for such stubbornness to be dismissible, it must be severe, persistent and\/or deliberate, said the law firm.<\/p>\n The case is also an important affirmation of employees’ Constitutional right to freedom of expression, which is not discounted by the fact that they are in a workplace under the direction and instruction of superiors.<\/p>\n