Introduction
What is the difference between insolence and insubordination in the workplace?
Insolence refers to rude, disrespectful or contemptuous conduct by an employee towards an employer or superior, particularly where such conduct undermines authority or the employment relationship. It is primarily concerned with the tone, manner, or attitude displayed by the employee.
By contrast, insubordination entails a wilful and deliberate refusal to obey a lawful and reasonable instruction given by an employer or superior.
The Labour Court in Palluci Home Depot (Pty) Ltd v Herskowitz & Others (2005) 26 ILJ 2425 (LC) confirmed that:
Insolence and insubordination are related but distinct concepts – insolence concerns disrespect, whereas insubordination involves defiance or refusal to comply with instructions.
When Does Insolence Warrant Dismissal?
Insolence does not automatically justify dismissal. The seriousness of the conduct must be assessed in context, including:
- whether the conduct was once-off or persistent;
- the employee’s seniority;
- the presence of provocation;
- whether the conduct resulted in a breakdown of the trust relationship.
In SACWU v NCP Chlorchem (Pty) Ltd (2007) 28 ILJ 2113 (LC), the Court held that rudeness or discourtesy alone is insufficient to justify dismissal and that context is critical.
Similarly, the Labour Appeal Court in Motor Industry Staff Association v Silverton Spraypainters & Panelbeaters (Pty) Ltd (2014) 35 ILJ 2823 (LAC) held that a once-off emotional outburst, particularly where remorse is shown, generally does not warrant dismissal and that progressive discipline remains the appropriate approach.
However, in Humphries & Jewell (Pty) Ltd v Fedics (1994) 15 ILJ 1385 (LAC), the Court confirmed that persistent insolence, even without an outright refusal to comply, may amount to a deliberate challenge to authority and can justify dismissal.
Insubordination and Dismissal
Insubordination is treated more seriously and may justify dismissal where the refusal to obey is wilful, serious and deliberate.
In Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp & Others (2002) 23 ILJ 863 (LAC), the Court held that not every failure to comply with an instruction constitutes dismissible insubordination; the refusal must be serious and defiant.
Ultimate Test Applied by the Courts
The decisive enquiry, as confirmed in NUM v CCMA & Others (2013) 34 ILJ 945 (LC), is whether the employee’s conduct has irreparably damaged the trust relationship and rendered the continuation of employment intolerable
Key Concepts
- Insolence vs. Insubordination: Insolence is a general lack of respect, while insubordination is a deliberate challenge to authority, typically involving the refusal of a specific, lawful, and reasonable instruction. Insolence can become insubordination if it escalates into an outright challenge to the employer’s authority.
- Progressive Discipline: For general or minor instances of insolence (e.g., ignoring a “good morning” or a single act of rudeness), employers in South Africa are expected to apply progressive discipline, starting with verbal or written warnings.
- Gross Insolence: Dismissal for a first offense is typically reserved for instances of “gross” misconduct. Gross insolence involves behaviour so severe that it immediately damages the employment relationship beyond repair. Examples could include:
- Yelling and swearing at managers.
- Using racial slurs or other highly offensive language.
- A severe, unprovoked public berating of a superior.
- Context is Crucial: Whether insolence warrants dismissal depends entirely on the specific circumstances of each case, including:
– The severity and wilfulness of the employee’s conduct.
– Whether the employee was provoked by the employer’s unreasonable conduct.
– The employee’s disciplinary record.
– Whether the employer has a clear disciplinary code that defines acceptable conduct and the potential sanctions.
Ultimately, the key test is whether the employee’s conduct has made the continued employment relationship intolerable. Employers must follow a fair disciplinary procedure and be able to prove the severity of the misconduct. if challenged.
Practical Summary
- Disrespect without refusal→ Insolence → usually progressive discipline
- Wilful refusal or defiance→ Insubordination → dismissal may be justified
- Persistent or gross insolence→ may justify dismissal
- Once-off emotional conduct→ dismissal usually inappropriate
