Insubordination – defiance, resistance, refusal, failure to obey…

The relationship between the employer and the employee is based on mutual benefits and respect and can insubordination have a huge effect on the employer employee relationship. Clear rules and guidelines ensure that friction and misunderstandings are kept to a minimum, which in turn promotes productivity and a positive working environment. Often only one employee acts as trouble maker, negatively influencing and inciting other employees. Reasons for such poor attitude can include personal circumstances, personality clashes, a misplaced sense of entitlement, etcetera.

What is insubordination

Insubordination refers to the defiance of, or resistance to authority and the refusal or failure to obey clear, reasonable and lawful instructions. Although restrictive labour regulations is listed as the most problematic factor for doing business in South Africa, employers should remember that they have many rights, including the right to:

  • Expect employees to always act in the best interest of the employer
  • Establish a fixed standard in terms of quality and quantity
  • Give reasonable and lawful instructions
  • Implement clear rules in the workplace
  • Apply discipline
  • Say ‘no’
  • Change terms and conditions of employment (subject to following the correct procedure)

Types of insubordination

In general insubordination is a serious offence, although it is important to differentiate between offences due to negligence and offences with intent, as it has a definite impact on the seriousness of the offence. The seriousness of the offence is also influenced by the employee’s type of work and responsibilities, (possible) consequences of the offence and the impact of the offence on the employee-employer trust relationship.

Insubordination can be related to a wide variety of offences and is mainly linked to disrespectful behaviour. Common offences include:

  • Failing to obey a reasonable and legal instruction
  • Refusing to obey a reasonable and legal instruction
  • Non-compliance with established rules and procedures
  • Distributing unauthorised propaganda – information, especially of a biased or misleading nature, used to promote or publicise a particular political cause or point of view
  • Insolence – any disrespectful attitude towards the supervisor, a more senior person or a client
  • Abusive language – this offence is more serious when it is aimed at race, gender, religion or any other arbitrary ground
  • Playing games – this offence is more serious when such action endangers the safety or health of others, or the good spirit and smooth running of work

Steps to follow:

We advise employers to follow these steps to identify misconduct referring to insubordination:

  • Investigate
    During the investigation the employer must establish whether the employee acted in an insubordinate manner. The employer should also gather evidence in this regard and determine the seriousness of the offence, including (possible) consequences.
  • Consult with the employee
    When consulting with the employee, the employer should determine if the offence was due to the employee’s negligence or with intent. It is important to give the employee the opportunity to present more information and explain the situation from his/her point of view.
  • Determine the sanction
    The sanction is determined by the seriousness of the offence. To establish if the sanction is fair, the employer must consider the facts of the case as every case has its own merits. It is important to note that the employer must prove on a balance of probability that the employee is guilty before imposing any sanction.
  • Take disciplinary action
    A disciplinary code is vital to ensure that there are clear rules in the workplace, with appropriate sanctions, for employees to follow. When these rules are broken the employer can apply progressive discipline (warnings) or in cases of severe misconduct proceed directly to a disciplinary hearing. The employer must take note to keep detailed records of employees’ misconduct and sanctions applied.

In conclusion

A disciplinary code is vital to ensure that there are clear rules and procedures in the workplace to be followed by employees. Every employee must have a detailed job description to clarify duties and the employer’s expectations.   Ensure that your disciplinary code is relevant and up to date regarding offences and appropriate sanctions. Also ensure that all employees are aware of what the disciplinary code entails.

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LWO Regsadviseur - LWO Legal Advisor

LWO Regsadviseur - LWO Legal Advisor

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