The blurring of the distinction between insolence and insubordination as two forms of misconduct has led to some difficulty for employers when deciding on what the appropriate disciplinary charge should be.
To identify the specific misconduct, it is important to understand what these types of misconduct comprise of by taking note of the definitions of these two forms of misconduct and thereby identifying the different elements thereof. Case law and its descriptions of insolence and insubordination supply some guidelines on how to navigate instances of possible insolent or insubordinate behaviour by employees.
For instance, in Enviroserve Waste Management (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others  ZALCPE 23 the Court held that the offence of insolence is generally equated with conduct, which is offensive, disrespectful, impudent, cheeky, rude, or insulting. It further held that such behaviour might be verbal, in writing or through demeanour, and invariably has the consequences of demeaning the person it is directed at or his or her authority.
This case further provides examples of various types of conduct associated with insolence which includes, but is not limited to talking back; talking over; shouting at; aggressively arguing; talking in a disrespectful, demeaning or contemptuous manner; body language such as eye-rolling, direct finger-pointing, looking or walking away whilst the employer or superior is talking, or, gesturing disrespectfully towards the employer or superior.
This type of disrespectful conduct by an employee towards his employer or superior is indeed viewed in a serious light, but is it serious enough to warrant dismissal at the first instance?
In the Enviroserve Waste Management case, it was held that the offence of insolence would only justify dismissal where it is wilful and serious with the result that the employment relationship breaks down irretrievably.
In Sylvania Metals (Pty) Ltd v Mello N.O. and Others  ZALAC 52 the Court also noted that even though insolence may become insubordination where there is an outright challenge to the employer’s authority, acts of mere insolence and insubordination do not justify dismissal unless they are serious and wilful.
Dismissal for insolence would only be justifiable in certain instances where the circumstances surrounding the incident were sufficiently serious and wilful, and therefore employers should exercise caution in this regard.
Insubordination, on the other hand, 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 a reasonable and lawful instruction. An employee is a subordinate of his or her employer and has a duty to follow the reasonable instructions of the employer.
In Wasteman Group v SAMWU  8 BLLR 778 (LAC) the Court considered the difference between insubordination per se and gross insubordination, which must give rise to the sanction of dismissal. The Court held that the difference between insubordination and gross insubordination is a question of degree. It was held that there is a difference between an employee who partially defies an instruction but later entirely complies and an employee who deliberately refused to obey an instruction, expressly defying an instruction and challenging the authority of the employer, especially in the presence of other employees.
For insubordination to constitute misconduct justifying a dismissal, it must be shown that the employee deliberately refused to obey a reasonable and lawful instruction by the employer. Employers would be wrong to assume that the refusal to obey a lawful and reasonable instruction will always justify dismissal. In fact, refusal to obey a lawful and reasonable instruction may, in some cases, not even constitute misconduct.
Gross insubordination is a serious offence because it presupposes an intentional breach by the employee of the duty to obey an employer’s instructions. The elements of gross insubordination include a reasonable and lawful instruction from the employer, which may be in the form of a warning, to the employee, followed by a serious refusal or failure by the employee to obey or carry out the instruction. Gross insubordination justifies dismissal.
In SAMWU obo Felicia v CCMA and Others (JR 2195/14) (2016) ZALCJHB 338, the Court enunciated the principles that govern insubordination. It held that the employee’s defiance must be ‘gross’ to justify dismissal. It held further that the insubordination must be serious, persistent and deliberate, and that the employer must adduce proof that the employee was guilty of defying an instruction. The courts’ view was that for an employee’s conduct to constitute gross insubordination evidence is required to demonstrate a persistent and willful refusal to comply with an instruction, which constitutes gross insubordination.
There is a fine line between insolence and insubordination, but knowledge and understanding of these differences will assist employers in identifying the form of misconduct and drafting the correct charge.
However, it is clear from what has been discussed that whether an employee has been insolent or insubordinate, dismissal must be reserved for instances where the employees conduct is both serious and wilful.
Article by: Ilze Erasmus, Jodi-Leigh Erasmus & Meghan Louw
Dispute Resolution Officials – Port Elizabeth