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:
- 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
- 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  3 BLLR 291 (LC) at 296I-297G and SACCAWU and Others v Mahawane Country Club  1 BLLR 20 (LAC) at paragraph ). It seems axiomatic, that any instruction to do what is unlawful, or in breach of a contractual term is not reasonable.
It is settled law that one of the requirements of a lockout is that it is to be preceded by a demand from the employer in respect of a matter of mutual interest. Does this equate to a lockout notice?