Insubordination is when an employee challenges the employer’s authority and commonly occurs when an employee wilfully refuses to obey a lawful and reasonable instruction. Employees have a legal duty to obey any valid instruction within their role, and defying such an instruction effectively challenges the authority that underpins the employment relationship.

Whilst the Labour Relations Act, Act 66 of 1995 (LRA) does not define insubordination, its Code of Good Practice on Dismissal recognises gross insubordination as serious misconduct. Insubordination can be direct (e.g., saying “I refuse”) or passive (e.g., deliberately ignoring an instruction).

Insubordination vs gross insubordination

Not all defiance is equally severe. Insubordination itself is misconduct that typically warrants corrective measures (like warnings or counselling) rather than immediate dismissal. By contrast, gross insubordination involves an extreme breach of duty: it is a deliberate, serious and often repeated defiance that undermines trust. The LRA’s code of good practice explicitly warns that an employer should not dismiss an employee for a first offence unless the misconduct is so serious that it makes the continued employment relationship intolerable. The seriousness of the insubordination must be assessed in the light of the implications for the employer and against the impact it has on the employment relationship.  Only when the defiance is deliberate and serious does it rise to gross insubordination, which might justify dismissal.

Legal and procedural steps

Legislation requires that any disciplinary action be for a fair reason and follow a fair procedure:

• Employers should begin by thoroughly investigating and documenting the incident. This includes recording what instruction was given, how it was communicated, the employee’s response, dates, witnesses, and any supporting evidence.
• If the employer considers disciplinary action, issue the employee with a formal notice to attend a disciplinary hearing detailing the specific charge of insubordination. The notice should explain which instruction was defied and why it is considered misconduct.
• At the disciplinary hearing, the employee must be allowed to respond to the allegation and may be assisted by a trade union representative or fellow employee. Employers should present the evidence fairly and objectively, ensuring that the instruction in question was lawful and reasonable.
• Throughout the process, the employer must follow their internal disciplinary code, applying consistent rules and sanctions. Once a decision is made, communicate it in writing. If dismissal is the outcome, the dismissal letter must outline the reasons. All records of the process should be kept in case of future disputes.

Disciplinary measures and best practices

Progressive discipline is a key principle in addressing insubordination.  In most cases, employers follow a structured process that begins with less severe measures and escalates only if necessary.  Dismissal should generally be considered as a last resort, appropriate only for serious or repeated misconduct.

Initial steps may involve informal counselling or verbal guidance to correct the behaviour and reinforce expectations. If the issue continues or is more serious, formal written notices may be issued. These should clearly describe the conduct in question and the consequences of any further incidents. Where the behaviour persists or where the insubordination is of a serious nature, the employer may escalate the matter through additional disciplinary steps, which could ultimately lead to dismissal.

Throughout this process, employers should act consistently, treating similar cases alike and applying fair procedures. Each step should be properly documented, including any meetings or warnings issued. If dismissal is the outcome, the reasons must be clearly communicated, and the employer must be able to demonstrate that the decision followed a fair process.

By combining clear policies with fair, documented procedure, employers can address insubordination effectively. Upholding mutual respect and following the statutory discipline framework helps ensure employees understand their duties.

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It happens that an employee is hired, but the employment contract is simply not signed. Employees are often under the mistaken impression that if the employment contract is not signed, he/she cannot be bound by the same rules and regulations as other employees who have signed the employment contract.

The employer-employee relationship is established when the employee and employer agree on terms of employment. The employee can therefore still be disciplined if the workplace rules and disciplinary code are violated, provided that the employer can prove that the rules existed, were reasonable, were consistently applied, the employee broke the rules and the employee had reasonable knowledge of the rules and regulations in the workplace.

What does the law say?

According to the Basic Conditions of Employment Act, Act 75 of 1997 as amended (BCEA), an employee must be notified in writing on the first day of employment of the details of the employment relationship. The BCEA also provides a detailed list of what must be included in this notice.

A written employment contract that is signed by both parties formalises the relationship and gives clarity to all parties. Without an employment contract, it can be difficult to prove that the employee agreed to certain terms such as shortened mealtimes, or even the period in cases of fixed-term employment contracts where the contract was only intended for a specific time/project.

Where do I start as an employer?

Resolve the situation by following these steps:

• Consult with the employee who does not want to sign the employment contract to explain the contract to him/her again and obtain reasons for the refusal;
• Give the employee a reasonable time to submit written reasons why he/she does not want to sign the contract, or to sign the contract if there is no reason not to sign it;
• If no reason/objection is given why the contract is not signed, the employer may request the employee to sign the contract again.
• If reasons can be provided, this can be discussed between the employee and employer.

The employer may take further steps to confirm the employment relationship and the rights of the employee concerned in terms of the BCEA by addressing a letter to the employee confirming the terms and conditions as prescribed in the BCEA. The employer will comply with the provisions of the BCEA if he provides the employee with a copy of the draft contract with a note that the employee has refused to sign it.

We always recommend that employers keep an attendance register and minutes for all consultations indicating that the employer followed a fair process and that the employee continued to work according to the terms of the contract, even if the contract was not signed. Should the employee verbally acknowledge his/her rights, an employment relationship is established and the person is then considered to be an employee.

Please note that an employer cannot simply dismiss an employee because he/she did not want to sign the employment contract. If an employer terminates the employment contract, whether concluded verbally or in writing, this may result in a referral of an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). The employee may then be entitled to reinstatement or compensation, even if they have not yet started working. However, if the correct processes are followed, the situation can easily be rectified and/or avoided.

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In South Africa, incapacity as a ground for dismissal relates to an employee’s inability to effectively perform their duties and responsibilities, mainly due to poor work performance, ill health or injury. The Labour Relations Act, Act 66 of 1995 (LRA) regulates this dismissal and requires it to be substantively and procedurally fair.

Categories of incapacity

Dismissal on grounds of incapacity is mainly placed into two categories:

• Poor work performance: Poor work performance refers to situations where an employee consistently fails to meet the required standards of their job. This incompetence does not stem from misconduct, but from an employee’s lack of skills, knowledge, or ability to perform their duties.

• Ill health or injury: When an employee is unable to perform their duties due to physical or mental health challenges, or an injury sustained, this form of incapacity becomes a possible ground for dismissal.

Other common examples of incapacity include operational incapacity, which refers to when an employee is unable to comply with an inherent requirement, provision or condition of their employment, or of legislation. For example, if it is absolutely essential for an employee to have their own reliable vehicle to carry out their work duties, this could lead to a possible case of incapacity if the employee no longer has a vehicle at their disposal.

Fairness

The LRA provides the basis for dismissal on grounds of incapacity and emphasises fairness and fair procedures. Section 188 of the LRA provides that a dismissal must be both substantively and procedurally fair. Furthermore, Schedule 8 of the LRA, the Code of Good Practice: Dismissal, provides guidelines on how to deal with this type of dismissal.

• Substantive fairness requires that there must be a valid reason for the dismissal. In the case of incapacity due to poor work performance, the employer must be able to prove that the employee’s performance was below the expected standard, that the employee was aware of the standard, received reasonable training and assistance to achieve the standard, and that the employee’s performance negatively affected the business. In the case of ill health or injury, the employer must be able to prove that the employee’s medical and/or psychological condition does not allow them to fulfil their contractual obligations.

• Procedural fairness involves the employee being consulted, informed of their shortcomings or health problems and given the opportunity to improve or redress. In the event of poor work performance, the employer must offer training, guidance or additional resources to help the employee meet the required standard. In cases of ill health, the employer must explore alternative roles or adjustments before dismissal can be considered.

Case study

In the case of Parexel International (Pty) Ltd v Chakane and Others [2019] 11 BLLR 1245 (LAC), the Labour Appeal Court heard a case involving an employee who had been absent from work for nine months due to an on-the-job injury. The court held that an employer cannot be expected to tolerate an employee’s prolonged absence due to ill health and that an employer is not obliged to keep the employee’s job open indefinitely. However, the court also emphasised the importance of thorough disability investigations to assess the employee’s condition and explore possible adjustments before dismissal can be considered as an absolute last resort.

Legislation requires employers to make reasonable accommodations for employees with disabilities or health conditions, particularly where these arise from the scope of their work. This includes adjusting working hours, modifying duties, or providing assistive technology. Failure to consider such measures may render dismissal on grounds of incapacity unfair.

Incapacity as a ground for dismissal requires employers to strike a balance between operational needs and the rights of employees. Labour law requires that dismissals on this ground be handled with fairness and empathy. Employers must follow fair procedures, provide opportunities for improvement and consider reasonable accommodation before terminating an employee’s employment as an absolute last resort.

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Appointing the right person is a challenge in itself, but using the right contract can be just as confusing. Each type of employment contract has a specific purpose and employers must use the right employment contract to minimise legal and financial consequences. Here is an explanation of the most common employment contracts, including permanent employment contracts, fixed-term employment contracts and the use of independent contractors.

Permanent employment contracts

A permanent employment contract is for positions where employment is for an indefinite period. This type of contract is typically used for key and other positions in the workplace that form part of the business’s day-to-day operational activities, such as managers, machine operators, general and administrative staff, etc.

Example: If you hire a foreman to manage the daily operations in your warehouse, a permanent employment contract would be appropriate. This agreement specifies that it is a permanent contract, which ends when the employee reaches the workplace’s retirement age, and sets out the responsibilities, working hours, compensation and other benefits such as paid leave. The employee remains in employment until the employment relationship is legally terminated – resignation, retirement, disciplinary action, retrenchment, etc.

Fixed-term employment contracts

A fixed-term employment contract is used when the employee’s position is of a temporary nature, usually for a specific period of time or project. Depending on certain factors, such as the size of the business, the employee’s compensation level, etc., there is a great deal of risk involved in using this type of contract.

If the employee is employed on a fixed-term basis for longer than three months, he/she may be considered to be a permanent employee in terms of legislation, unless there is a justifiable reason for the extended contract. Legislation sets out some valid reasons for fixed-term employment contracts lasting longer than three months, including:

• To replace another employee who is temporarily absent
• Temporary increase in work volume
• Student or postgraduate internships
• Project work
• Non-citizens who have a valid work permit for a specific period
• Seasonal work
• Public works or job creation schemes
• After reaching retirement age

Example: An employer in a coastal town hires extra workers at their store to help with the increased work volume over the holiday period from November to January. After the season ends, their contract expires without any further obligations to each other.

It is important to note that using fixed-term employment contracts to circumvent permanent employment is illegal. For example, repeatedly renewing a fixed-term employment contract without a justifiable reason of an employee who performs continuous work may be considered an unfair labour practice.

Independent contractors

With an independent contractor, there is no employer-employee relationship. They are a service provider who provides services to your business, but are not considered an employee. Independent contractors usually work on specific tasks or projects that are not related to the operation of the business, and are responsible for managing their own work and tax affairs. They are not entitled to the benefits or protections offered to employees.

Example: If the employer contacts a tractor agency to send a tractor mechanic to come and put a new tire on the tractor, the mechanic is used as an independent contractor. He will repair the tractor according to agreed rates and timelines, but will not be subject to the employer’s day-to-day management like a regular employee. They are also free to offer their services to other businesses. Independent contractors offer flexibility and can be cost-effective for specialised tasks. However, it is important to make a clear distinction between an independent contractor and an employee, as the incorrect classification of a worker can lead to legal complications.

Conclusion

To effectively manage an employer’s workforce, it is essential to understand the different types of contracts, as well as to ensure legal compliance. An employer must be able to distinguish between permanent staff, fixed-term employees and the use of independent contractors so that they know where their obligations lie towards these individuals.

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An arbitration award is a legally binding decision issued and handed down by a commissioner in either the Commission for Conciliation, Mediation and Arbitration (CCMA), or a Bargaining Council.  These awards usually specify the outcome of the dispute and are issued after the parties have concluded their arbitration proceedings at the CCMA or Bargaining Council. For the commissioner to conclude the matter the parties must state their cases and produce all their evidence relevant to the matter during the arbitration proceedings. It is critical to understand that these awards are binding on all parties to the proceedings and can be legally executed in the event of non-compliance.

When the arbitration award is issued

Once process is concluded the arbitration award will be issued within a couple of weeks and, if the employee was successful the award will contain remedial action against the employer such as to pay the employee compensation, or to re-instate or re-employ the employee.

After the award has been issued and the employer has not complied with the award, the employee may elect to enforce the award against the employer to secure compliance with it.

Enforcing an arbitration award

Section 143 of the Labour Relations Act, Act 66 of 1995 as amended (LRA), provides an effective and accessible way to enforce an arbitration award if the award has not been complied with. The LRA allows a certified award to be enforced as if it was an order of the Labour Court in respect of which a writ has been issued, unless it is an advisory arbitration award.

Arbitration awards can be referred to the director of the CCMA for certification and this is done on application by the party seeking enforcement. The process to certify the arbitration award changes the award into an executable legal document, which allows for enforcement through the court system.  Therefore, without certification the award cannot be enforced as an order of the court.

Non-compliance

Employers should note that non-compliance with arbitration awards can be very risky. Once certified, the arbitration award can be enforced in the same manner as an order of the Labour Court, or Magistrate’s Court. Essentially enforcement methods can include a writ of execution for the attachment of property, garnishee orders, or contempt of court proceedings.

In cases where a written undertaking, or a compliance order, has not been honoured by either party against whom the order has been issued, an application or request may be made to the CCMA to make the undertaking, or compliance order, an arbitration award in terms of sections 68(3) or 73(1) of the Basic Conditions of Employment Act, Act 75 of 1997 as amended (BCEA).

In terms of section 143(5) of the LRA an arbitration award that orders the payment of a sum of money, is to be enforced or executed as if it is an order of the Magistrate’s Court. Where an arbitration award orders the performance of an act other than the payment of money (e.g. reinstatement), any party to the award may, without further order, enforce it by way of contempt proceedings instituted at the Labour Court.

It is of paramount importance for employers to ensure that they are present at the arbitration itself and present their case to the best of their ability.  If an award is issued against the employer, it is of vital importance that the employer get advice from a labour advisor on the award, so that they can look at options to challenge the award, or alternatively to ensure they comply with the award within the specified time period to avoid any further repercussions for non-compliance.

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