You’ll often find the terrible twins, insubordination and insolence, hand in hand.

Employees have a common-law obligation to subordinate themselves to the legitimate authority of their employer, and to the extent that they refuse to do so, they are insubordination.

In Palluci Home Depot (Pty) Ltd v Herskowitz and Others (1989) 10 ILJ 311 (IC) the Court described insubordination as “The offence of insubordination in the workplace has, in this regard, been described by our Courts as 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. Whereas in some cases defiance of an instruction may indicate a challenge to the authority of the employer, this is not so in every case. insubordination may also be found to be present where disrespectful conduct poses a deliberate (wilful) and serious challenge to, or defiance of the employer’s authority, even where there is no indication of the giving of an instruction or defiance of an instruction. It is, therefore, not essential for an instruction to be given or disobeyed to found a challenge to the employer’s authority.”

In Wasteman Group v South African Municipal Workers Union (2012) 8 BLLR 778 (LAC), the Labour Court held that there was a clear distinction between insubordination which did not warrant dismissal and gross insubordination which attracted dismissal.  It has frequently been held that the test for ascertaining whether misconduct amounted to gross insubordination, rather than simple insubordination, was whether the conduct was serious, persistent and deliberate.

The Labour Appeal Court in Humphries and Jewell (Pty) Ltd v Federal Council of Retail and Allied Workers Union and Others (1991) 12 ILJ 1032 (LAC) held that “In our view a disregard by an employee of his employer’s authority, especially in the presence of other employees, amounts to insubordination and it cannot be expected that an employer should tolerate such conduct. The relationship of trust, mutual confidence and respect which is the very essence of a master‑servant relationship cannot, under these circumstances, continue. In the absence of facts showing that this relationship was not detrimentally affected by the conduct of the employee it is unreasonable to compel either of the parties to continue with the relationship… “.

Gross insubordination was also addressed in Polyoak Packaging (Pty) Ltd v Siquibo NO and Others [unreported: case number 236/2008], it was said that “As a general principle it may be stated that the breach of rules laid down by an employer or the refusal to obey an employer’s lawful and reasonable order is to be viewed in a serious light and may in given circumstances even justify summary dismissal. However, the presence of certain prerequisites is required. In the first place [a] it should be evident that an order, which may even be in the form of a warning, must in fact have been given. . . . In the second place [b] it is required that the order must be lawful; an employee is therefore not expected to obey an unlawful order such as to work illegal overtime; and thirdly, [c] the reasonableness of an order should be beyond reproach and will be enquired into: in cases before the court the order or request has sometimes been found to be reasonable and at other times to be unreasonable. In addition, it is required . . . that the refusal to obey must have been serious enough to warrant dismissal”.

Insolence is disrespectful conduct, sometimes described in our courts as “a mere disrespect for the employer (or insolence, impudence, cheekiness or rudeness) which cannot, on its own, constitute insubordination which by its very nature requires disobedience or an outright challenge to authority”; insolence has also been described as repudiation by an employee of the employee’s duty to show respect.   Additionally, “unless the insolence or insubordination is of a particularly gross nature, an employer must issue a prior warning before having recourse to the final act of dismissal”.

When all is said and done, employers should include recommended sanctions for both insubordination and insolence in their disciplinary codes.  Insolence is generally viewed as a less serious act of misconduct than insubordination.