INSUBORDINATION and INSOLENCE
by, 26-Apr-13 at 04:26 PM (26397 Views)
http://www.naickersterne.co.zaInsubordination and Insolence INSUBORDINATION and INSOLENCE
A common problem experienced by employers is distinguishing between insubordination and insolence.
An employee can be insolent (impudent, cheeky, disrespectful or rude) without necessarily being insubordinate (disobedient or challenging authority). Mere disrespect for the employer (or insolence, impudence, cheekiness or rudeness) cannot by itself constitute insubordination, which requires disobedience or an outright challenge to authority. An example of insubordination is where the employee refuses to obey the lawful instruction given to him by his superior. It must contain the element of resistance to authority, and must be deliberate (wilful) and serious.
This does not mean that contemptuousness of authority (insolence, impudence, cheekiness, disrespect or rudeness) cannot constitute a ground for dismissal (provided, of course, that it is wilful and serious). One should, however, always distinguish between insubordination on the one hand and insolence on the other hand because they are definitely not the same kind of offence. Insolence should involve progressive dismissal, with a final written warning being issued first, rather than dismissal on the first instance.
Insubordination is when the employee refuses to obey a lawful and reasonable command or request and the refusal is wilful and serious, or when the employee's conduct poses a deliberate and serious challenge to the employer's authority. However, unless the insubordination is so gross that dismissal without warning is justified, prior warnings should be issued for insubordination before resorting to the final act of dismissal.
In Commercial Catering & Allied Workers Union of SA & Another v Wooltru LTD t/a Woolworths (Randburg) (1989) 10 ILJ 311 (IC), (previously mentioned in the commentary on WARNINGS), the employee had been dismissed for “insubordination and insolence”. The employee had had an altercation with her store manager during which, when he enquired after the stock on her shelves, she stated, “why are you checking on me?” She was called into his office, where she opened and searched the manager's cupboard without his permission. The employee was then charged with “insolence and insubordination” at a disciplinary and subsequently dismissed.
The court found that she may have been insolent, but certainly not insubordinate. The employee had been issued in the past with a final written warning for insolence, which was nine months old. The court took into account the fact that the warning should have only been valid for 6 months and that that final written warning had relied on unrelated offences. The court came to the conclusion that the insolent behaviour of the employee did not constitute a fair and valid reason for her dismissal, and compensation was awarded to the employee.
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