Sonja Vorster
South African employees are seemingly under the impression that they are so heavily protected by the Constitution, by labour legislation, by the Labour Courts the CCMA and trade unions that they are less often afraid to defy the employer’s instructions.
Many employers feel the same way and feel that they have lost control in their companies and that the law no-longer looks after the interest of the employer’s business. This is obviously not the case for every employee as many companies can be very proud of a large volume of productive and happy staff.
A small minority of employees are unfortunately causing serious problems that affect the entire workplace. With all our socio, political, unemployment and crime in South Africa, we can barely afford to have this problem increasing in momentum.
It is imperative that every company, take the time and effort to ensure that their contracts of employment are re-visited and that great care is taken in the design of the disciplinary code of conduct. Training and implementation sessions must be held to ensure that the rules are known, the rules are clear and that the rules are understood.
This needs to be done on a regular basis to ensure that you, as an employer, can effectively use your disciplinary process with success.
What is insubordination?
“Insubordinate” as “not submissive to authority, disobedient or rebellious”. It is the refusal of an employee to bow to the authority exercised reasonably by the employee’s superior.
This could include conduct such as:
• Refusal or intentional failure to obey reasonable and lawful instructions
• Comments such as: “You are not my boss”, “You have no authority over me” or ignoring the instruction and walking away when it is clear the instruction was heard
Insubordination versus disrespect
• Insubordination applies only upwards and can only be perpetrated by a junior towards a senior.
• Disrespect, on the other hand, can apply upwards and downwards.
For example, it would be disrespectful for a manager to shout at an employee and tell him to ‘get out of the office’. Disrespect is therefore not necessarily linked to a person’s position of authority but can also be linked to one’s human dignity.
What is a reasonable instruction?
A reasonable instruction is one that:
• The employee is capable of carrying out and
• Involves a task that is not substantially beneath the employee and
• Does not infringe the rules of the employer or the laws of the country and
• Involves a job that truly needs to be done.
For example, if the boss tells the female Human Resources Manager on a two-day week contract to come in over the weekend to repair a faulty geyser, the HR Manager might be entitled to refuse because the HR Manager is being required to carry out a task:
• That is completely outside the sphere of the HR Manager’s duties
• Outside of the HRM’s capabilities and knowledge
• Assigned for a time that is not normally worked
• That, if carried out by the HRM, could result in danger to users of the geyser.
However, telling the HRM to conduct recruitment interviews because the HR Officer is in hospital would, in most cases, be both legal and reasonable. For the employer the resulting insubordination is a nightmare. This is especially so where the employer is ill-equipped to deal with insubordinate employees and fails to understand:
• What insubordination really is
• How it differs from disrespect
• What a reasonable instruction is
• When a charge of insubordination is not appropriate
• How seriously the law views insubordination
• How it should be dealt with
• When a charge of insubordination is not appropriate
Insubordination is not the same as poor work performance. That is, poor work performance relates to how badly the employee has performed work or missed deadlines.
While poor work performance can sometimes be wilful there is usually some work that is done but badly and the poor performance occurs regardless of whether the employee has been given an instruction. On the other hand insubordination means the employee’s refusal to obey a specific instruction whether the instruction relates to work performance or not.
