Insolence as a ground for dismissal

Insolence and insubordination, as misconduct, almost always go together. While insubordination lies in the employee’s refusal to comply with a lawful and reasonable instruction of the employer, insolence consists of impudence, cheekiness, disrespect or rudeness. In CCWUSA & Segwenyane v Wooltrue t/a Woolworths (Randburg) (1995) 1 ICJ 1.2.2 the Industrial Court distinguished between “mere” insolence and insubordination, stating that the two are different forms of misconduct. A warning for insolence will not normally justify a subsequent dismissal for insubordination.

While it is clear that willful and serious insubordination may lead to dismissal (even, in some cases, for a first offence), insolence on its own as a ground for dismissal appears to be the exception rather than the rule — employers tend to charge employees with a combination of insubordination and insolence at the same time.

But there does appear to be some scope for, at the very least, disciplinary action in the context of insolence. In this case, however, progressive and corrective discipline will play a pivotal role: the basic principle here being that dismissal will not be appropriate for a first offence. Instead, a graduated series of warnings will be more appropriate, ranging from a written warning, perhaps, for a first offence, to a final written warning, and, if the insolence persists and is of a serious nature, dismissal as a last resort.

Another fact that may play a role is whether the employee’s co-worker or manager provoked the employee into insolence — this may have a considerable mitigating effect on the seriousness of the offence and may render dismissal inappropriate, even if the insolence was of a gross and serious nature.

What insolence and insubordination have in common is that they both amount to the employee challenging the employer’s authority. Once this essential element can be proven by the employer, the employee may be found guilty of insolence or insubordination in the absence of provocation.

An interesting recent CCMA arbitration award is Sekete and Temoso Technologies 8A College (2004) 13 CCMA 8.18.7. In this case, the CCMA commissioner came to the conclusion that insolence is a form of insubordination, consisting of the employee’s breaching his or her duty to show respect to the employer. If the insolence is willfull and serious, it would amount to gross insubordination. The commissioner also rejected the employee’s novel argument that he was merely exercising his freedom of speech.

The problem with disciplinary offences such as insubordination and insolence is that they often arise in the context of a breakdown in working relationships between managers and subordinates or even co-workers. If this is the case, it may be more appropriate for the employer to focus on the breakdown of the relationship and to intervene, in some way or another, in that relationship, rather than taking disciplinary action against only one party. Of course, these things can be messy in the extreme, as long histories of personal animosity may have to be aired. Another choice the employer will have to consider is whether to proceed against an employee on the basis of misconduct or on the basis of poor work performance — incompatibility, in this case.

But it cannot be expected of an employer to put up, over the longer term, with an employee who is rude and disrespectful to others. Eventually, once corrective and progressive discipline have run their course, the employer may find itself contemplating dismissal as the only means of dealing with a disruptive employee.