Insubordination: “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.” (Palluci Home Depot v Herskowitz and others)

Historically, the issue of insubordination has been misunderstood by both employer and employee alike. This source of serious misconduct poses a challenge to management and workplace fluidity. This has become a bane on workplace environments in the last couple years in such a way that it has seen numerous cases show up in the labour courts.

The Labour Appeal Court has given clarity into when a dismissal for insubordination would be justified, in TMT Services and Supplies (Pty) Ltd v CCMA and 2 Others [JA32/2017].

In this case, an employee received instruction from their manager to attend a meeting aimed at discussing an audit report and additionally poor performance. In response to this instruction, the employee had sent an email highlighting points as to why she wanted to postpone the meeting. She followed up said email with an SMS, telling her line manager to read the email.

After receiving the communication from the employee, the manager made a point to answer her questions and provide clarity on her apprehension regarding the meeting. The manager went so far as to respond to the email as well as notify the employee via SMS, as well. It was determined that the meeting would go on as was scheduled after confirming with the employee that it was not a formal hearing or something alike and did not need formal documentation.

On the day of the meeting, after being reassured and confirming the aspects of the conversation that was to be held, the employee notified the company 15 minutes after the scheduled start date of the meeting, that she was in the wrong location. It seemed like she had purposefully not gone to the location where the meeting would have been held, but instead opted to go to a different location. This resulted in the meeting being cancelled and a hearing being scheduled to address the insubordination of the employee.

After a fair disciplinary hearing, the employee was found guilty of being insubordinate and subsequently dismissed. The case was referred to the Commission for Conciliation Mediation and Arbitration, where the commissioner found the dismissal of the employee to be fair. Thereafter, the case was referred to the Labour Court where the CCMA’s ruling was overturned, but after the employer appealed the ruling to the Labour Appeal Court, the court then returned to the original CCMA ruling of fair dismissal.

The Labour Appeal Court in its judgement noted the following:

“The employer’s prerogative to command its subordinates is the principle that is protected by the class of misconduct labelled “insubordination” and addresses operational requirements of the organisation that ensure that managerial paralysis does not occur.”

The court further noted that an employer should not have to negotiate with employees on day-to-day organisational arrangement and that employment will be intolerable if this is the case. It further noted that the employee’s refusal to attend the meeting was to undermine the working relationship with her manager.

It is clear from this judgment that the instruction does not need to be repeatedly refused in order for it to constitute insubordination.

The onus on the employer is to prove the existence of insubordination, and therefore, all the circumstances around it. It is highlighted that insubordination does not always have to include the words “I refuse to do it” but is rather an element of what the failure to follow an instruction intends to achieve and the effect thereof on the employment relationship.

It is important for any employer to take into consideration the premise of what entails a subsequent insubordination accusation. It is pertinent for the company to ensure that they follow all necessary proceedings, have clear witness statements stating why an action from an employee can be viewed as insubordinate, as well as thorough processes that alight to the following of an instruction and what the consequences will be if not.

A good example of how easily insubordination can get lost in the small details would be the recent ruling of Pioneer Foods (Pty) Ltd. The Labour Court has reaffirmed the courts’ view of insubordination and the definition thereof in the recent case of Pioneer Foods (Pty) Ltd t/a Aeroton Bakery v CCMA and Others [2025].

Some background on the abovementioned case:

The Employee had been employed by the company, Pioneer Foods, as a Production Supervisor for sixteen years prior to being dismissed for Gross Negligence, failure to follow an instruction and gross insubordination. This misconduct was summarised in the failure to follow instruction and gross insubordination with the result, according to the employer’s version, in financial losses to the amount of R39 853.

The charges and the dismissal emanated from an alleged failure by the employee to follow an instruction given regarding the manual mixing of bread dough. This in turn resulted in the loss of 11 070 loaves of bread, allotting to the financial loss.

The instruction was given due to an issue experienced with the brown bread flour; to mitigate the effect of this, white bread flour had to be mixed with brown bread flour and the process had to be done manually. As per the employer’s case, said instruction was given to the employee. The dismissal of the employee was based on the failure of following the instruction to mix manually.

During the arbitration the existence of the instruction to mix manually was disputed by the Employee. The commissioner in the arbitration found that the witnesses gave conflicting versions in terms of the existence of this instruction. The employer further failed to prove that there was any reutterance of the instruction, even when it was clearly not followed.

The court found that the employer failed to prove fairness of the dismissal as outlined in section 192(2) of the Labour Relations Act. The court further agreed that the employer failed to prove the existence of an instruction to mix manually and that the witnesses delivered incoherent statements. The court, therefore, held that the award made by the CCMA against the employer to retrospectively reinstate the employee, fell within the standards and reasonableness.

It is reaffirmed by the court on what the courts define as insubordination, and further what is required to prove that insubordination did indeed take place. The onus on the employer to prove the existence of the instruction and the circumstances around it plays a crucial role in justifying a dismissal for insubordination.

It is clearly outlined in these cases that insubordination can be a thorny issue if the employer is unable to adequately prove and outline the important aspects thereof. Moreover, insubordination does not always take the form of a verbal refusal to follow an instruction.

 

– Written by: Johan van Heerden