Tread Carefully: Insubordination and Insolence can Easily be Confounded
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:
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 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’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 inPalluci 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 ofgrossinsubordination andgrossinsolence. 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.
Reviewed by Peter le Roux, an executive consultant in ENSafrica's employment department.
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