31 October 2022 by and Employment Law Alert

Challenging the authority of management or merely seeking clarity: When does insubordination occur?

Insubordination is the wilful failure or refusal to obey a lawful and reasonable instruction given by a superior. This is different from insolence, which is rudeness, cheekiness or disrespectful behaviour. The Labour Court in Independent Risk Distributors SA (Pty) Ltd v CCMA and Others (JR 1906/19) [2022] ZALCJHB 282 (11 October 2022) dealt with an application for the review of an arbitration award in which the Commissioner found that the dismissal of the employee (Mr Ndlovu) for gross insubordination was unfair as the employee was only guilty of asking for clarity during a staff meeting.

Factual background

The CEO of the company scheduled a meeting with Ndlovu and his co-workers in the sales department to discuss the underperformance of the department. The meeting culminated in the CEO issuing an instruction to all sales representatives, including Ndlovu, to go home for the day and reflect on their poor performance. Ndlovu challenged that instruction by, in a less than courteous manner, questioning why he was to go home in light of his personal performance having been above par.

Ndlovu was then charged with gross insubordination and, upon being found guilty, dismissed.

After the arbitration proceedings that then ensued, Ndlovu’s dismissal was found to have been unfair, the arbitrating Commissioner concluding that the employer had failed to establish gross insubordination on Ndlovu’s part. In short, the arbitrating Commissioner concluded that what Ndlovu had done was not misconduct, but merely seeking clarity from the CEO on his instruction.

The employer challenged the arbitration award on review before the Labour Court (LC).

Before the Labour Court

The LC restated the principles in relation to the test on review – the Sidumo test. That is, whether the arbitrating Commissioner’s decision was one that a reasonable decision maker could reach having regard to the material and evidence before them. The LC then considered the principles on the misconduct of “insubordination”.

Applying those principles, the LC 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. On the facts, the LC agreed with the arbitrating Commissioner that Ndlovu’s conduct did not amount to gross insubordination as he had merely asked questions at the meeting with a view to obtaining clarity on the instruction issued. Moreover, after obtaining that clarity from the company’s general manager, Ndlovu had 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. The review application was dismissed, with costs.

Conclusion

This case is of particular importance in dealing with the elusive misconduct of insubordination. 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. What is required is an unrepentant intransigence against good instruction issued by a superior, and no less. Moreover, for such obstinacy to be dismissible, it must be gross (serious, persistent and deliberate).

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.

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