Published by

Jonathan Goldberg

The scene of an employee speaking out against the boss in a company meeting, them being chastised by the powers-that-be and then her making the lofty statement of: “I quit” is common to a lot of movies and TV shows.

While this type of scenario is all very good and well for Hollywood, the situation in real life is not as dramatic.

While the situation that we describe in the opening lines of this article often leads to the employee being shown the door, carrying a paper box of their possessions, under South African labour law you need to unpack the nature of the ‘talking back’ and then, based on the facts of the matter at hand, you can then decide on if the issue warrants dismissal.

The Fine Line Between Insolence, Insubordination And Gross Insubordination

When faced with a matter of an employee challenging a statement made by an employer or that employee’s line manager, there are three classifications that this behaviour could fall under:

• Insolence,
• Insubordination, and
• Gross Insubordination

‘Insolence’ is characterised as behaviour that is rude and cheeky. It can be written or verbal. This type of disrespectful behaviour is indeed seen in a serious light however to justify dismissal it needs to be wilful and serious with the result that the employment relationship breaks down irretrievably.

In terms of ‘insubordination’, an employee refuses to accept the authority of the employer or a person who has authority over them, e.g. a line manager. Dismissal for a single act of insubordination is only justifiable in certain instances where the circumstances surrounding the incident are sufficiently serious Normally this conduct warrants a warning.

Regarding ‘gross insubordination’, this is a wilful and intentional act that is unprofessional and unethical. This would normally destroy the trust relationship between employer and employee. If the employee had stood up and said “I will not flipping follow your instructions. Go to hell” that would be gross insubordination.

Avoid Landing Up At The CCMA

As an employer, if you find yourself wanting to dismiss an employee based on gross insubordination, make sure that you are very sure that this is indeed a case of gross insubordination, if it’s not you could find yourself facing a very hefty award at the CCMA.

This was the case in Independent Risk Distributors SA Ltd v CCMA and others. Heard in the Labour Court (LC), this case was an application to review an arbitration award where the Commissioner found that the dismissal of the employee for gross insubordination was unfair as she was merely asking for clarification during a staff meeting and not wilfully disobeying any instruction.

Facts Of The Case

The company’s CEO scheduled a meeting with the sales team (which included the employee) to discuss their team’s underperformance. It was said that during the meeting the CEO instructed the sales employees to go home and reflect on their poor performance.

In a challenging manner, the employee stood up asking why they were being issued with this instruction. As a result of this act, the employee was charged with gross insubordination, was found guilty and then dismissed.

At arbitration, the Commission found the dismissal to be unfair as the employee had not given adequate reasons to substantiate the gross insubordination charge.

The employer took the case to the Labour Court (LC). It applied the reasonable person test when coming to its finding. It asked whether another reasonable Commissioner would have come to the finding that the first Commissioner did. The Court concluded that any reasonable Commissioner would have concluded what the primary Commissioner had come to.

The LC upheld the arbitration award.