When considering the charge of failing to comply with a lawful instruction given from a superior the charge is self-explanatory. An instruction given from a superior is deemed as lawful and reasonable if it falls within the employment scope of the employee. This additional instruction will become an added responsibility expected of the employee. If an employee deliberately refuses to do what is expected of him by his subordinate and does not apply the necessary mind to the importance of this instruction given it can be seen as an act of insubordination.
It is important to note that these two charges remain separate. Insubordination occurs when an employee shows clear signs of disrespect and defiance towards the authority of his/her employer or superior. This is evident when an employee refuses or fails to obey a lawful and reasonable instruction given by their employers or superiors. This refusal to obey a lawful command must be serious, wilful and has to challenge the employer and his authority.
It is clear that these two charges are very closely interlinked and even the smallest act of noncompliance with instruction can add up to a charge as severe as gross insubordination. This is evident in Naicker v Commission for Conciliation Mediation and Arbitration and Others(JR843/17) [2019]. Naicker was employed as a customer service agent where part of her duties was to calculate payments for clients of the company. This employee(Naicker) was given an instruction by her line manager to copy her in all emails sent to clients as Naicker continuously sent incorrect pricing to their clients. Due to the fact that Naicker persistently made these mistakes, the instruction given to her was not unreasonable or unlawful. After receiving this instruction to copy her line manager in all emails that are sent to clients she failed to copy the last mentioned in an email sent to a client within an hour that the instruction was given and repeated this behaviour numerous times thereafter. By failing to comply with the instruction Naicker disrespected the authority of her manager by disregarding an instruction and deemed it unimportant.
Naicker disregarded this instruction on numerous occasions where she selectively decided in which emails she copied her manager in and which not. This indicates that the instruction was capable of being obeyed. Her misconduct was persistent and could not be seen as an honest mistake as she simply decided when she wanted to copy (CC) her manager in on her emails. She was charged with gross insubordination and was taken to a disciplinary hearing for this continuous misconduct whereupon she pleaded guilty to the charge. The chairperson was satisfied with the statements presented and accepted the employee’s guilty plea. The chairperson found a summary dismissal to be the appropriate sanction after considering the previous disciplinary action taken against this employee for similar misconduct as Naicker already had a final written warning for similar misconduct that was still valid at the time that she committed this offence.
This matter was referred to the CCMA whereupon she challenged the procedural as well as substantive fairness. Naicker stated that she was not insubordinate towards her manager as she lacked the necessary level of intent and her actions could not be classified as deliberate and serious enough to be seen as gross insubordination. Naicker was of the opinion that she simply forgot to copy her manager in on her emails. The commissioner found that this dismissal was fair.
She, later on, launched a review application where the court was called to decide if an employee’s failure to comply with an instruction from her manager to copy her in emails warrants a dismissal. The Labour Court found that there was no reason to question the commissioner’s decision and that there would be no award against the employer (Africa Flight Services).
Naicker constantly disobeyed a simple instruction but was proven that this instruction was indeed lawful and serious. Therefore employees are warned not to disregard instructions they deem as unimportant especially if they are intended to achieve a legitimate business objective.
Employers instructions should always remain respected as well as their authority and therefore to uphold the level of respectability, noncompliance of even the smallest of tasks can be seen as an act of gross insubordination. Respect is one of the most essential elements in the employer-employee relationship second to the trust relationship and therefore deemed as very important. This means that an employee has an obligation of showing the necessary level of respect towards his employer and complying with the lawful instructions given. No matter how small.
ABOUT THE AUTHOR
Tinita Gerber is a Labour and BEE legal advisor with qualified training in the Consumer Protection and POPI department. She conducted her studies at the North-West University of Potchefstroom and started working for SEESA in February 2019.