Gross insubordination is grounds for dismissal. However, it is not always cut and dried as can be seen with the case of SAMWU, AA Dawood v eThekwini Municipality, The South African Local Government Bargaining Council Commissioner & Ndaba N.O – Case No: Da18/2016 Labour Appeal Court.
The employee was employed as an electrical technician by his employer. He had had a clean disciplinary record for almost 20 years until he received a verbal warning for insubordination.
On 11 November 2009, the employee was warned – a second time – by a senior manager that his continued refusal to comply with the instructions to complete the running sheets constituted gross insubordination. He would be disciplined for this non-completion. The employee’s response was that since other employees were not completing the running sheets, he would not comply with the instructions.
The employee was instructed, for a third time, to complete the running sheets and challenged his managers to “go ahead, do whatever you want to do”. The employee was suspended from duty. Following a disciplinary hearing he was dismissed.
An arbitrator found the employee’s dismissal to be procedurally fair but substantively unfair because of inconsistency. In other words the employer had not shown that other employees – who did not complete the running sheets – had been disciplined. The employee was consequently awarded what the arbitrator felt was “just and equitable” compensation of R115 866.88 for his unfair dismissal and not reinstated. This equated to six months remuneration.
On review, the Labour Court found that the employee’s conduct demonstrated “a wilful and serious refusal by an employee to obey a lawful instruction and a direct challenge to the employer’s authority”. The arbitrator held that, having regard to the “factors justifying exception to reinstatement as listed in section 193(2) of the LRA; in this case, whether the circumstances surrounding the dismissal were such that continued relationship would be intolerable” it would not be fair to reinstate the employee. The Labour Court concluded that the arbitration award was not so unreasonable that no reasonable commissioner could have come to the same decision.
On appeal to the Labour Appeal Court (LAC) it was concluded that the use of the peremptory “must” in s193(2) requires that reinstatement, or re-employment, must follow after a finding of a substantively unfair dismissal. This is the primary remedies under the LRA unless not sought by the employee or where either, or both, of the “non-reinstatable conditions” are present, impractical or intolerable. There is an onus on the employer to prove the existence of these “non-reinstatable conditions”.
Having found the dismissal to be substantively unfair owing to inconsistency, the arbitrator had to consider if the peremptory reinstatement should not be awarded in light of the particular circumstances of the matter. The arbitrator relied on unduly narrow considerations, while disregarding or placing insufficient emphasis on, the other relevant considerations.
The employee sought reinstatement as the primary remedy. He had an extended period of long service with a previously clean disciplinary record. A limited period of time remained before his retirement. The employer was found to have been inconsistent in the application of disciplinary measures and the evidence supported a finding that progressive discipline could reasonably have been applied. The employee was reinstated with warning valid for 12 months imposed for insubordination.
Contact Global Business Solutions for questions about gross insubordination
Matters dealing with gross insubordination are tricky to deal with and, as such, need to be handled by highly skilled and experienced labour law practitioners. Craig Kirchmann, and anyone of our legal team, can help you with these sorts of matters. Please follow this link to contact him.