Article 24/2021

Labour Edge

Under which circumstances will insubordination justify dismissal?

The labour appeal court recently, in Maripane v Glencore Operations SA (Pty) Ltd (Lion Ferrochrome) (2019) 30 SALLR 163 (LAC), adopted the following approach:

  1. there was an onus on the respondent to show that the dismissal, which was common cause, had been fair. This would have included showing, on a balance of probabilities, that the appellant had been guilty of the misconduct with which he had been charged and for which he had been dismissed. To justify dismissal, the insubordination had to be gross, meaning that the insubordination ‘must be serious, persistent and deliberate’; and
  2. whether the refusal to obey an instruction amounts to insubordination also depends on various factors, including the employee’s conduct before the alleged insubordination, the wilfulness of the employee’s refusal to obey, and the reasonableness of the instruction (Workplace Law (above) at 175 and the cases cited therein fn. 125). The reasonableness of any instruction also depends on its lawfulness and enforceability (see Mlaba v Masonite (Africa) Ltd and Others [1998] 3 BLLR 291 (LC) at 296I-297G and SACCAWU and Others v Mahawane Country Club [2002] 1 BLLR 20 (LAC) at paragraph [7]). It seems axiomatic, that any instruction to do what is unlawful, or in breach of a contractual term is not reasonable.

To what extent is the practice manual of the labour court binding on all parties and the labour court?

The institution of review proceedings does not suspend the operation of an arbitration award unless security is furnished to the satisfaction of the court in terms of s145(8) of the LRA.  On what basis did the labour appeal court recently resolve the conflict between various labour court judgments interpreting the stay of enforcement of arbitration awards pending review proceedings?

What are the requirements to be met for s158(1)(c) of the LRA to be applicable (dealing with the jurisdiction of the labour court) to make an arbitration award or settlement agreement an order of court?