Monday, September 01, 2008

Subordination is the very essence of an employment relationship. A subordinate relationship between an employee and employer gives rise to the obligation, on the part of the employee, to obey the lawful and reasonable instructions of the employer and to show respect to the employer, and her managers within the employer’s organisation. Respect and obedience are regarded as an implied duty of every employee. 
Insolence and insubordination are not the same kind of offence. Our courts have distinguished between mere insolence and insubordination, stating that the two are different forms of misconduct. However, sometimes it is difficult to determine if an employee’s conduct is an act of insolence or insubordination, or both. For example, in a situation where a manager instructs her subordinate to fetch a lever arch file from the filing cabinet, and the subordinate responds by saying “fetch it yourself”, such conduct is likely to have elements of both insolence and insubordination.  
Insolence is one of the forms of misconduct which is based on the common law obligation of an employee to display an appropriate degree of respect and courtesy towards her employer. Insolence consists of impudence, cheekiness, disrespect or rudeness. Relevant considerations in the context of insolence include the persistence of insolence, the seriousness of insolence, and the status and position of the person to whom the employee displays the insolence. In cases where insolence on the part of the employee is proven, it may not be sufficiently serious to warrant dismissal for a first offence unless the insolence is of a sufficiently gross nature. Only in cases where the employee persists in being insolent, may dismissal be justified.
Insubordination on the other hand is in essence a refusal by an employee to suborn himself to the authority of his manager. Insubordination may assume a variety of forms, from verbal defiance to conduct displaying degrees of disrespect. The most important form of insubordination is the refusal by an employee to obey a lawful instruction. From the decisions by our courts it appears that the test in insubordination cases is whether the employee intended to challenge the employer's authority. Dismissal is generally justified in cases of gross insubordination. Item 3(4) of schedule 8 to the Labour Relations Act, being the Code of Good Practice: Dismissal, states that it is generally not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable. The Code lists gross insubordination as an example of serious misconduct that may justify dismissal. However, in some instances a graduated series of warnings may be more appropriate, the purpose of which is to attempt to correct the behaviour of the offending employee. In determining whether gross insubordination warrants dismissal of an employee, the extenuating factors need to be weighed against the grossness of the employee’s insubordination and the prospects of the employee suborning himself to the authority of her manager in the future.
Karen Fulton is a director and Eva Mudely is a senior associate at Bowman Gilfillan