South Africa: Tread Carefully: Insubordination And Insolence Can Easily Be Confounded

Last Updated: 16 July 2019
Article by Hlengiwe Mahlangu

Most Read Contributor in South Africa, July 2019

Unfair dismissal disputes arising from allegations of insubordination have had their fair share of attention from South African arbitrators and the courts. The latest of these decisions is that of the Labour Court in Naicker v Commission for Conciliation Mediation and Arbitration and Others.

The employee in this matter, Ms Naicker, was employed by Africa Flight Services (a cargo handler) as a customer service agent. Part of her duties was to calculate fees chargeable to clients and to communicate this information to them.

As a result of her issuing incorrect fee charges to certain clients, Ms Naicker was told, by email, by her supervisor Ms Fritz, that she should not issue fee charges based on insufficient information and that she was required to copy Ms Fritz in on all emails sent to clients in this regard.

Notwithstanding this instruction, she failed on several occasions to copy Ms Fritz in on mails she sent to clients. On this basis, Ms Naicker was dismissed for insubordination. Aggrieved by her dismissal, she referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration ("CCMA"), challenging both the substantive and procedural fairness of her dismissal.

The primary arguments raised by Ms Naicker during the arbitration were that:

  • her failure to include her manager in the email communications did not constitute insubordination, as she lacked the element of mens rea (ie, the intention to be insubordinate) and that her conduct was a mere honest mistake;
  • her failure was caused by her busy schedule and that the instruction constituted a new procedure that she was not used to;
  • her conduct was bona fide, and could have been corrected without the necessity of disciplinary processes, especially since the gravity of the allegations against her was minimal. Ms Naicker also contended that her conduct did not result in any financial loss to the employer.

The commissioner rejected these arguments and found that the dismissal had been fair. She applied to the Labour Court to have the award reviewed and set aside. The most important ground for review was that the commissioner failed to apply her mind to, or appreciate, various issues, namely:

  • the fact that the charge of insubordination requires a wilful and serious challenge to, or defiance of, the authority of the employer;
  • that a charge of insubordination could not be sustained because there had been no mens rea on her part;
  • the commissioner failed to appreciate the distinction between insubordination and insolence and that insubordination is a more serious disciplinary offence than insolence, and;
  • that her failure to copy Ms Fritz in her emails was an honest mistake and not insubordination.

The Labour Court accepted that the essence of Ms Naicker's defence was the absence of an intention to consciously disobey her manager's instruction and that such an absence meant that her conduct could therefore not constitute insubordination. The court conducted an analysis of the evidence placed before the commissioner and found that there was no basis for the court to interfere with the commissioner's award and that the award was indeed reasonable. The court stated that:

  • Ms Naicker failed to comply with the manager's instructions on more than one occasion. This could not amount to a mistake as her conduct was persistent and took place over prolonged periods;
  • to copy a person in an email could not have taken long, irrespective of how busy the employee was; it was improbable that Ms Naicker forgot to copy Ms Fritz in her email correspondence;
  • the instruction was clearly lawful and reasonable;
  • Ms Naicker openly showed that she questioned Ms Fritz's knowledge, abilities and competencies. Her  conduct in " ... consistently disobeying a simple, lawful and reasonable instruction"  was "wilful and serious" and posed "a deliberate (wilful) and serious challenge to [Ms Fritz's] authority as her manager";
  • that respect and obedience are implied duties of an employee under contract law, and any repudiation thereof would constitute a fundamental and calculated breach of the contract;
  • the relationship between Ms Naicker and Ms Fritz could not be restored to a normal working relationship; and, as a result;
  • Ms Naicker's dismissal was fair.

Comment

Ms Naicker's argument that, in order to constitute insubordination the conduct of the employee must be deliberate and intentional is correct. But this does not mean that conduct that does not comply with this requirement may not constitute another form of disciplinary offence. For example, the conduct may be negligent or could constitute evidence of poor work performance.   

In coming to its conclusion, the court accepted and applied the wide definition of insubordination formulated in Palluci Home Depot (Pty) Ltd v Herskowitz. Insubordination is not limited to a refusal to obey an instruction. It includes conduct which:

" ... poses a deliberate (wilful) and serious challenge to the employer's authority. 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."

Furthermore, the court held that dismissal should be reserved for instances of gross insubordination and gross insolence. While the view that the concept of insubordination goes further than a failure to comply with an instruction seems correct, the blurring of the distinction between insubordination and insolence may mean that it could be difficult for employers, depending on the formulation of the provisions of their disciplinary codes, to decide what the appropriate disciplinary charge should be. In these circumstances, it may be advisable for the employer to formulate the charges in the alternative.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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