In its simplest form, insubordination is a refusal to follow lawful and reasonable instructions given by an employer. Insubordination may manifest itself either directly or indirectly. An example of direct insubordination would be when the employer instructs the employee to perform a task and the employee states, “I will not” or, “I refuse”. An example of indirect insubordination is when an employee is clearly instructed to do something but ignores the instruction by deliberately omitting its execution.
Our courts have defined insubordination as follows:
“a wilful and serious refusal by an employee to obey a lawful and reasonable instruction or where the conduct of an employee poses a deliberate (wilful) and serious challenge to the employer’s authority.”
Perhaps the most essential element of the misconduct is that the instruction must be reasonable. This means that the instruction should fall within the normal course and scope of the employee’s duties. However, although a task may not be directly related to an employee’s duties, it may be ancillary and necessary for the employer’s operational requirements. An employee’s refusal would likely not be reasonable in such a case.
Insubordination would not usually warrant immediate dismissal, particularly on a first offence. Generally, insubordination will only warrant dismissal where the defiance is gross in nature. This means it must be deliberate, persistent, and serious. Several factors must be considered in insubordination, such as the employers conduct, prior to the act – for example, where provocation might play a role – the wilfulness of the defiance and the reasonableness of the instruction. However, the key test used by our courts has been to see whether the insubordination has led to the deterioration of the employment relationship.
Schedule 8(4) of the Labour Relations Act stipulates the following:
“Generally, it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. Examples of serious misconduct, subject to the rule that each case should be judged on its merits, are gross dishonesty or wilful damage to the property of the employer, wilful endangering of the safety of others, physical assault on the employer, a fellow employee, client or customer and gross insubordination.”
The essential elements for insubordination, according to Brassey et al., The New Labour Law, is as follows:
- It should be evident that an order, which may even be in the form of a warning, was given.
- The order must be lawful.
- The reasonableness of the order should be beyond reproach.
- The refusal or failure to obey must have been serious enough to warrant dismissal.
From the above, it is clear that firstly, the employee must be made aware of the order or instruction to carry out a task and must knowingly refuse to do so. This order can be from any senior colleague in the workplace with the authority to instruct the employee and need not be a specific person. Such an order may also be in the form of a warning and can be either written or verbal.
If the trust in the employment relationship has been clearly breached, dismissal based on insubordination is likely to be warranted. For example, where an employee in a high-risk environment refuses to carry out or ignores an instruction that subsequently endangers the lives of other co-workers, the trust relationship would clearly be damaged significantly.
In conclusion, insubordination must be a clear and unreasonable refusal to follow instructions. Therefore, insubordination must be a true act of defiance of authority that is deliberate. Each matter will be established on its own merits.
Although possible pitfalls may be identified for considerations of acts of insubordination, nothing will do away with an employee’s duty to be obedient.
Article by: Carlene Van Der Lith
Dispute Resolution Official – Kimberley