Commissioners must determine whether there was a valid and fair reason to dismiss but are not empowered to consider afresh what they would have done.  They simply decide whether what the employer did was fair or unfair.  In considering all relevant circumstances they are not required to defer to the employer’s decision.  Relevant circumstances would include:

  • nature of the (mis)conduct;
  • final written warning remained in force;
  • age and sole breadwinner with five dependents;
  • unwillingness of superior to work with employee;
  • employee’s limited service; and
  • lack of remorse.

Sylvania Metals (Pty) Ltd v Mello NO (JA83/2015) [2016] ZALAC 52 (22 November 2016) per Savage AJA (Waglay JP and Molemela JA concurring)

LAC summary:

Employee dismissed for insubordination in his behaviour directed at plant manager and breach of company rule in undertaking valve repair in the plant without authorisation.  At the time of dismissal, the employee had a final written warning for insubordination which remained in force.  At arbitration, commissioner found the employee’s dismissal substantively unfair in that his behaviour constituted insolence and not insubordination while finding that no policy prevented his repair of the valve without authorisation and the employee was retrospectively reinstated.  The Labour Court dismissed the appellant’s subsequent review application in that the commissioner’s decision fell within the ambit of reasonableness required.  Appeal upheld: Judgment of Labour Court set aside, arbitration award reviewed, set aside and substituted with order that dismissal was substantively fair.  No order as to costs. 

Excerpts without footnotes


[16]   The contract of employment between employer and employee is one to be interpreted subject to the constitutional right to fair labour practices and the national legislation which gives effect to that right.[1] Our courts have traditionally viewed respect and obedience as implied duties of an employee under the employment contract,[2] with the outdated reliance on obedience intended to refer to the employee’s duty to adhere to the lawful and reasonable instructions of the employer. Any repudiation of such duties constitutes a fundamental and calculated breach of the employer’s lawful authority[3] given that an appropriate degree of mutual trust, respect and courtesy is to be shown by both employer and employee towards the other in the context of an employment relationship.[4]

[17]   Insubordination in the workplace context generally refers to the disregard of an employer’s authority or lawful and reasonable instructions.[5] It occurs when an employee refuses to accept the authority of a person in a position of authority over him or her and, as such, is misconduct because it assumes a calculated breach by the employee of the obligation to adhere to and comply with the employer’s lawful authority.[6] It includes a wilful and serious refusal by an employee to adhere to a lawful and reasonable instruction of the employer, as well as conduct which poses a deliberate and serious challenge to the employer’s authority even where an instruction has not been given.[7]

[18]   This Court in Palluci Home Depot (Pty) Ltd v Herskowitz and Others,[8] discussed the “fine line” between insubordination and insolence, with the latter being conduct that is offensive, disrespectful in speech or behaviour, impudent, cheeky, rude, insulting or contemptuous. While the Court noted that insolence may become insubordination where there is an outright challenge to the employer’s authority, “acts of mere insolence and insubordination do not justify dismissal unless they are serious and wilful”.[9] The sanction of dismissal is reserved for instances of gross insolence and gross insubordination[10] or the wilful flouting of the instructions of the employer.[11]

[19]   The evidence before the commissioner showed that during the course of the conflictual meeting held with the employee, he indicated that he was unwilling to work with Mr Malema as his senior in the manner of a normal working relationship. He adopted an argumentative and hostile approach to Mr Malema during the meeting, refused to answer questions put to him, indicated that he would not work according to Mr Malema’s standards and that he required his instructions to him to be put in writing in future.  Thereafter, the employee left the meeting before it was concluded and in evidence was unrepentant when he stated that he would behave in the same manner in the future were the situation to arise again.  His wilful conduct in this regard was to be considered against Mr Malema’s evidence that given the employee’s behaviour he was not prepared to work with the employee in future.

[20]   The evidence before the commissioner showed that the employee’s behaviour went well beyond a reasonable or legitimate difference of opinion between employer and employee. The employee was aggressive, rude and disrespectful in his speech and behaviour towards Mr Malema during the course of the meeting.  His refusal to adhere to a reasonable instruction given to him to explain the circumstances of the valve repair was both wilful and serious.  His insistence that all future instructions to him to be signed by the plant manager, that he would not work according to Mr Malema’s standards and his decision to leave the meeting before it had concluded posed a deliberate and serious challenge to the employer’s authority.  His conduct indicated a refusal to respect the authority of Mr Malema as his superior.  It also indicated an approach which was impractical insofar as it sought to require Mr Malema to place all instructions to him in writing.  The employee’s chosen course of behaviour constituted serious misconduct.  It was not merely insolent but also insubordinate in the refusal to respect and adhere to the line of authority in the workplace.

[21]   For these reasons, the commissioner’s finding is unreasonable and unsustainable that, while the employee had committed misconduct this was not sufficiently serious to constitute gross insubordination or gross insolence. The employee was grossly insubordinate in his behaviour directed at Mr Malema and his conduct was sufficiently serious and deliberate to amount to a gross misconduct.[12]