Midrand Branch Manager
Elma Engelbrecht
The first question that needs to be answered is: what is insubordination? There seems to be confusion regarding when an employee must be charged under this heading or whether the charge should be under a different heading.
Insubordination may be prescribed as resistance to, or defiance of authority, refusal or failure to obey reasonable and lawful instructions. In the Labour Appeal Court of CWIU and another v SA Polymer Holdings PTY (LTD) t/a Megapack (1996). insubordination was defined as "a willful 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 characteristics that are present in insubordination would be a willful, verbal refusal of instruction, a willful disregard of managements authority.
Every employee not only has the duty to come to work and be on time, but also the duty to obey all reasonable and lawful instructions. In other words, to do as he or she is told, within the parameters of what is accepted as being a reasonable and lawful instruction. Any instruction that can be carried out without breaking any statute, common law or company policy is regarded as a lawful instruction.
What is then reasonable? For an instruction to be reasonable there are some elements that are required:
- An instruction can quite easily be lawful, but at the same time unreasonable. For example: it would be quite lawful to instruct an employee to clean his or her office, but it would be unreasonable should you require the employee to do so in the middle of the night.
- The instruction must be capable of performance. The employee to whom the instruction is given must have the necessary knowledge, skill, ability and capability to carry out the instruction. Instructing an employee do so something he or she is clearly not capable of doing would be deemed unreasonable.
- The instruction must fall within the ambit of the job. This means that the instruction that is given to an employee must relate to the employee's job description. It would be unreasonable to instruct an employee to clean the dust bin, when the employee is the senior creditor's clerk and there are cleaners at work to do the cleaning.
To discipline an employee for insubordination, the employer must be able to prove the following:
- was the instruction given to the employee;
- was the instruction lawful and reasonable;
- did the employee willfully refuse to execute the instruction?
Disciplinary action must be progressive and corrective of nature. This includes the issuing of a written warning, final written warning and should the employee continue to refuse to execute instructions, he or she must be issued with a notification to attend a disciplinary inquiry where the outcome may result in dismissal. Dismissal for insubordination can take place where the employee continues to refuse to execute instructions, where he or she was issued a written and a final written warning or where the insubordination was "gross".
In the case of National Union of Metalworkers of SA & Another v Kromberg & Schubert (Pty) Ltd (2008) 29 ILJ 1343 (BCA) the courts found this to mean that the insubordination must be serious, persistent and deliberate, and that the employer must adduce proof that the employee was in fact guilty of defying an instruction.
In conclusion, the employer has the right to give reasonable and lawful instructions to an employee in order to benefit the operational requirement of the business. Should the employee refuse to execute such an instruction, the employer has the right to discipline such an employee.
Should you as employer have any difficulties with your staff, please contact your consultant in order to set up a consultation with you and your staff to explain the rights of you as employer as well as their rights as employees.
Labournet consultants are specifically trained to assist companies with the drafting of charges and chairing of disciplinary inquiries.Contact your LabourNet consultant directly or the LabourNet Helpdesk on 0861 522 638 for assistance.
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