Gross insubordination is viewed by our Courts as serious misconduct. In terms of The Code of Good Practice: Dismissal, gross insubordination may even, depending on the merits, warrant dismissal of the accused employee for a first offence. What makes gross insubordination such a serious form of misconduct is the fact that employees are expected to respect their employers, to be subject to the authority of their employers and not to challenge that authority wilfully.
However, before employers dismiss an employee for gross insubordination, there are several factors that should be considered in order to avoid an adverse award at the CCMA. Gross insubordination thus does not afford an employer an easy way out of an employment relationship at any stage the employer deems fit.
Let us look at the definition, insubordination occurs when an employee refuses to accept the authority of his or her employer or of a person in a position of authority over the employee. It may be described as resistance to, or defiance of, authority or disobedience, refusal or failure to obey reasonable and lawful instructions. The Labour Appeal Court in CWIU and another v SA Polymer Holdings Pty (Ltd) t/a Megapack (1996) 8 BLLR 978 (LAC), defined insubordination as “a wilful and serious refusal to obey a lawful and reasonable command, or conduct by the employee which poses a deliberate and serious challenge to the employer’s authority”.
The elements of gross insubordination can thus briefly be summarised as follows:
- An employee has to refuse an instruction given by a superior or the employer in a serious, persistent and deliberate manner;
- The instruction given had to be lawful and reasonable. An instruction to work illegal overtime would thus not be lawful or reasonable;
- An employee’s conduct must be of such nature as to seriously challenge the employer’s authority;
Looking at the above, it becomes clear that an employee is expected to be subjective to his or her employer’s authority and has to perform the reasonable and lawful instructions given by his or her employer.
When arbitrated at the CCMA, the commissioner will thus have to consider whether the employee’s conduct demonstrates an intention to defy the employer’s authority. The employer will have to present evidence in this regard showing that the employee had intended to defy the employer’s authority. The employer further needs to show that the employee deliberately refused to obey a reasonable and lawful instruction given by the employer.
In addition to the above, an employer will further have to demonstrate that the employee’s conduct was so serious that it had adversely impacted the employment relationship and that the employee cannot be trusted to perform instructions or respect the authority that the employer has over the employee anymore. An employer must further act consistently by not turning a blind eye to some employees who may not be carrying out instructions given and then dismissing others who do the same. This will amount to inconsistency on the part of the employer and could lead to an adverse award by the CCMA, which may include re-instating the dismissed employee.
It is thus important to secure legal advice prior to charging and/or dismissing an employee for gross insubordination, as each case will have to be considered on its own merits.
Article by: Gerhard Strydom
Dispute Resolution Official – Kimberley