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.

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.