Insubordination may be described as an act of resistance, refusal or failure to obey reasonable and lawful instructions from authority, which could lead to a harmful impact on the company’s functionality.
Some examples of Insubordination include but are not limited to:
“Willful, verbal refusal of instructions, willful disregard of management authority, disrespect, rudeness, rebelliousness or disobedient gestures, manner or attitude, dismissive gestures, walking away, abusive language, knocking the written instruction or notification of enquiry from the senior manager’s hand, or taking it and discarding it, addressing the senior manager or director or supervisor in a disrespectful manner”.
Gross insubordination is a serious offence because it entails a deliberate transgression by the employee of the duty to follow their employer’s instructions. For Insubordination to be a gross misconduct, the act must be so serious that it breaks any trust or confidence between a boss and their employee. Gross insubordination justifies dismissal.
In the case of SAMWU obo Felicia v CCMA and Others (JR 2195/14) (2016) ZALCJHB 338, the Court expressed the principles that govern insubordination. It held that the employee’s disobedience must be gross to justify dismissal. It held further that the insubordination must be serious, persistent and deliberate, and that the employer must produce proof that the employee was guilty of defying the instruction.
For insubordination to amount to misconduct justifying a dismissal, it must be shown that the employee deliberately refused to obey a reasonable and lawful instruction by the employer. Employers would be wrong to assume that the refusal to obey a lawful and reasonable instruction will always justify dismissal. In fact, refusal to obey a lawful and reasonable instruction may, in some cases, not even amount to misconduct.
Insolence may be described as act of rejection by an employee of his or her duty to show respect. Insolence can be easily summed up as an employee’s disrespectful behaviour towards their employer.
In the case of Enviroserve Waste Management (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others  ZALCPE 23 the Court held that the offence of insolence is generally equated with conduct, which is offensive, disrespectful, impudent, cheeky, rude, or insulting. It further held that such behaviour might be verbal, in writing or through non-verbal reactions, and always has the result of undermining the person it is directed at or his or her authority.
I.e. dismissal for insolence would only be justifiable in certain occasions where the conditions surrounding the incident were overly serious and willful, and therefore forces the employer to apply caution or discretion in this regard.
Some employers often make the mistake of drafting insubordination and insolence in one charge without differentiating or making it two different charges
In the case of Commercial Catering & Allied Workers Union of SA & Another v Wooltru LTD t/a Woolworths (Randburg) (1989) 10 ILJ 311 (IC), the employee had been dismissed for insubordination and insolence. The employee had had an argument with her store manager during which, when he examined after the stock on her shelves, she asked, “why are you checking on me?” She was called into his office, where she opened and searched the manager’s cupboard without his permission. The employee was then charged with insolence and insubordination at a disciplinary enquiry and was dismissed. The court found that she may have been insolent, but certainly not insubordinate. The employee had been issued in the past with a final written warning for insolence, which was nine months old. The court took into account the fact that the warning should have only been valid for 6 months and that the final written warning was based on unrelated offences. The court came to the conclusion that the insolent behaviour of the employee did not constitute a fair and valid reason for her dismissal, and compensation was awarded to the employee.
Clearly, the employer should have had two separate charges in the above mentioned case:
First charge should have been insubordination for when the employee searched the manager’s cupboard without permission (for not obeying superior’s lawful and reasonable orders)
Second charge should have been for insolence when the employee asked “why are you checking up on me?” (for attitude and cheekiness)
Generally, insolence seems to be less of a serious misconduct compared to insubordination but it still should not be taken lightly, because little issues mostly tend to lead to more serious behavioural issues.
There is a fine line between insolence and insubordination, but knowing and understanding what differentiates these two concepts will help employers identify the right form of misconduct, and therefore drafting the correct charge. Most people say “It’s all in the attitude”.
However, it is clear from the above information that whether an employee has been insolent or insubordinate, dismissal must be always be last resort or restrained for occasions where the employee’s conduct is both serious and willful.