Insubordination at work – a fine line between disobedience and disrespect

There is a fine line between disobedience and disrespect in the workplace and employees must be careful not to cross this line by knowing what insubordination is and avoiding interactions involving it.

When you ask questions, are you challenging the authority of management or merely seeking clarity and when does insubordination occur?

What is insubordination?

Insubordination is the wilful failure or refusal to obey a lawful and reasonable instruction from your superior, says employment law experts at Cliffe Dekker Hofmeyr (CDH), Bongani Masuku and Thato Maruapula.

They say refusing to obey an instruction differs from insolence, which is rudeness, cheekiness or disrespectful behaviour.

So, when you ask for clarity during a staff meeting in a less than courteous manner, can this be seen as insubordination?

Insubordination is defined as refusing to accept the authority of your employer or a person in a position of authority. But what happens when you do not deliberately or persistently refuse to comply with a superior’s instruction?

You could hardly be found guilty of insubordination.

ALSO READ: Have you lost your job? You could be entitled to severance pay

Constitutional right to freedom of speech

Masuku and Maruapula point out that it is important to note your constitutional right to freedom of expression which is not discounted by the fact that you are in a workplace under the direction and instruction of superiors.

A case of insubordination would require you to have an unremorseful, stubborn stance against a good instruction from a superior. Masuku and Maruapula use a labour court case, Independent Risk Distributors SA (Pty) Ltd v CCMA and Others from 11 October 2022, as an example.

This case dealt with an application for the review of an arbitration award, where the commissioner found that the dismissal of the employee (Mr Ndlovu) for gross insubordination was unfair as he was only guilty of asking for clarity during a staff meeting.

The CEO of the company scheduled a meeting with Ndlovu and his co-workers in the sales department to discuss the underperformance of the department, which culminated in the CEO issuing an instruction to all sales representatives, including Ndlovu, to go home for the day and reflect on their poor performance.

Ndlovu challenged that instruction by, in a less than courteous manner, questioning why he had to go home as his personal performance was above par. He was then charged with gross insubordination and dismissed after being found guilty.

ALSO READ: Trouble at work? These are your rights when facing a disciplinary hearing

Dismissal was unfair

After the arbitration proceedings that followed, Ndlovu’s dismissal was found to have been unfair and the arbitrating commissioner said that the employer failed to establish gross insubordination on Ndlovu’s part, concluding that what he did was not misconduct, but merely seeking clarity from the CEO on his instruction.

The employer challenged the arbitration award on review before the Labour Court. The court restated the principles to test on review by using the Sidumo test.

The Sidumo test is used to determine if the arbitrating commissioner’s decision was one that a reasonable decision maker could reach considering the material and evidence before them.

The court then considered the principles on the misconduct of “insubordination” and held that “insubordination” essentially refers to a challenge to a superior’s authority by failing or refusing to carry out an instruction issued by the superior.

On the facts, the court agreed with the arbitrating commissioner that Ndlovu’s conduct did not amount to gross insubordination as he had merely asked questions at the meeting with a view to obtaining clarity on the instruction issued.

ALSO READ: Problem with your manager at work? Here’s how to file a grievance

Unrepentant stubbornness

Moreover, after obtaining clarity from the company’s general manager, Ndlovu then complied and left for home for the day.

For these reasons, the commissioner’s arbitration award was a decision that a reasonable decision maker could have reached on the material placed before them. The review application was dismissed, with costs.

Masuku and Maruapula say this case is of particular importance in dealing with the elusive misconduct of insubordination.

“In short, when employees do not deliberately and persistently refuse to comply with a superior’s instruction, they can hardly be found guilty of insubordination.”

What is required, they say, is an unrepentant stubbornness against good instruction issued by a superior and nothing less and for such obstinacy to be dismissible, it must be gross or in other words, serious, persistent and deliberate.