Can an employer dismiss an employee for insubordination? The short answer: Yes. However, as with any misconduct case, a dismissal should only ever be used as a last resort. In addition, the onus is on the employer to ensure that a dismissal is both procedurally and substantively fair, and in line with Schedule 8 of the Labour Relations Act 66, of 1995. Furthermore, it is not merely enough to know that the process was fair, it must be provable and verifiable.
This begs the question. If an employee commits acts of insubordination, at what point may an employer fairly dismiss the employee?
At the core of every employment relationship is a common law duty of an employee to render services to an employer for the agreed remuneration. The existence of this notion of quid pro quo leads to the expectation that an employer may dictate the extent of these services, as long as the services falls within the ambit of the law. Subsequently, the employee may expect to be remunerated for the services rendered. It stands to reason that should the employee decide to refuse or fail to follow a reasonable instruction and lawful instruction from the employer, an employer should have recourse. In order to fairly evaluate an employee’s insubordination, it is advisable to follow a number of steps. (Note that the steps below is not exhaustive, but gives a broad overview of the steps to follow).
Step 1:
The first step to determine if an employee committed an act of insubordinate is to determine if indeed a reasonable and lawful instruction was given. Since the onus of responsibility to provide proof of any misconduct resides with the employer, the employer must be able to definitively proof that the instruction was given.
This is easier said than done. If an employee denies ever receiving such instruction, it is not merely enough for an employer to testify that they gave the instruction. It is recommended that sufficient witnesses and/or other documentary evidence such as e-Mails or letters be used in support of such claim. The important part is that an unbiased chairperson should be able to determine on a balance of probability, that an instruction was indeed given.
Step 2:
The second step is to determine if the employee refused the instruction. At times, an employee may fail in complete the required instruction, which is not the same as refusing an instruction all together. There are a multitude of reasons an employee may fail to adhere to an instruction. The onus is on the employer to proof that this reason constitutes a definitive refusal.
It is important to note that the conduct of the employer prior to the employee’s refusal would also be scrutinised. If it is found that the employer provoked the employee into refusing to obey an instruction it could be determinantal to the employer’s case. However, even in the presence of severe provocation, a refusal of the said instruction might still constitute as insubordination, albeit with possible mitigation. It should therefore only be determined that the employer issued a reasonable and lawful instruction which was deliberately and wilfully refused by the employee.
Step 3:
Once it has been established that a reasonable and lawful instruction had been given, and that the employee deliberately and wilfully refused the instruction, the extend of the insubordination needs to be determined. In other words, the severity of the misconduct needs to be determined.
- The manner of refusal:
It stands to reason that the insubordination of an employee that silently refused to follow a given instruction may be seen as less severe that the insubordination of an employee that publicly denounce their employer. Therefore, the manner in which the refusal occurs is relevant and should be evaluated.
- The position of the person whose authority is repudiated:
It stands to reason that the refusal of an instruction from a supervisor may be less severe than the refusal of the same instruction from the CEO. Therefore, it is important to note the authority of the person whose authority is repudiated.
- The reason behind the refusal:
Usually, most employees can supply reasons for their insubordination. These reasons need to be evaluated to determine if it gives sufficient justification for the refusal of an instruction. If the instruction was reasonable and valid, there are few reasons to justify the refusal of such instruction. Regardless, the reasons behind the refusal may give rise to mitigating factors which should be considered.
- Whether this conduct is isolated or not.
A single act of defiance would usually may not be enough to dismiss an employee. It is not always evident which factors in an employee’s life played a role in their actions. An employee could merely have had a bad day, and their emotional outburst of defiance may be reduced to a singular event. In such cases, it would rarely be seen as fair to dismiss an employee whose behaviour could be corrected via a mere warning. It would also be difficult for an employer to argue how the employment relationship had been irrevocably destroyed by such event.
This does not mean that a singular act or refusal may not be construed as gross insubordination and result in a fair dismissal, as indicated in the case of TMT Services and Supplies (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others [2019] 2 BLLR 142 (LAC), where the notion of defiance of authority can be proven by a mere single act of defiance. However, an employer should rather attempt progressive disciplinary action where possible.
In most cases, insubordination is not clear cut. In such instances, an employer would be prudent to consideration the persistence of insubordination. In such cases, progressive disciplinary action would usually be the best course of action.
In summary, an employer may terminate an employee’s contract after a single act of insubordination, if it can be definitively proven that such act had repudiated the employment relationship to the point where any possibility of an employer/employee relationship had become impossible. As this can be quite difficult to do after only a single act of defiance, it is usually best to take the route of progressive disciplinary action.
