On what basis did the labour court recently hold, in De Kock v CCMA and Others (2019) 30 SALLR 177 (LC), that insubordination destroys the relationship of trust, mutual confidence and respect, and generally makes the continued employment relationship intolerable?
In De Kock, the following approach to the aforesaid scenario was adopted:
- in Humphries and Jewell (Pty) Ltd v Federal Council of Retail and Allied Workers Union and Others (1991) 12 ILJ 1032 (LAC), at 1037F–H, the labour appeal court held as follows:
‘…In our view a disregard by an employee of his employer’s authority, especially in the presence of other employees, amounts to insubordination and it cannot be expected that an employer should tolerate such conduct. The relationship of trust, mutual confidence and respect which is the very essence of a master‑servant relationship cannot, under these circumstances, continue. In the absence of facts showing that this relationship was not detrimentally affected by the conduct of the employee it is unreasonable to compel either of the parties to continue with the relationship…’ (see also Commercial Catering and Allied Workers Union of SA and Another v Wooltru Ltd t/a Woolworths (Randburg) (1989) 10 ILJ 311 (IC));
- the misconduct in casu was exacerbated by the fact that it had been deliberate and repeated, in the face of several efforts by the employer to simply secure compliance (see A Mauchle (Pty) Ltd t/a Precision Tools v National Union of Metalworkers of SA and Others (1995) 16 ILJ 349 (LAC), at 359E–F);
- in Motor Industry Staff Association and Another v Silverton Spraypainters and Panelbeaters (Pty) Ltd and Others (2013) 34 ILJ 1440 (LAC), at paragraph , the labour appeal court summarised the position in such circumstances as thus:
‘It is trite that an employee is guilty of insubordination if the employee concerned wilfully refuses to comply with a lawful and reasonable instruction issued by the employer. It is also well settled that where the insubordination was gross, in that it was persistent, deliberate and public, a sanction of dismissal would normally be justified…’ (see also Public Servants Association of SA on behalf of Khan v Tsabadi NO and Others (2012) 33 ILJ 2117 (LC), at paragraphs  and );
- the kind of insubordination committed by the applicant, in this instance, for want of a better description, was such that it would per se be destructive of the employment relationship;
- the applicant, in short, had made her intentions clear – she was not going to comply with her direct manager’s instructions to work the proper working hours as prescribed by the third respondent and had consequently earned her dismissal. An appropriate comparison could be found in the following dictum in Silverton Spraypainters:
‘In the present instance, Mr Van Jaarsveld wilfully, persistently and publicly defied a lawful and reasonable instruction given to him by his employer, Mr Cronje, who was the sole director of the company. On one of the occasions when Mr Van Jaarsveld defied the instruction it was in the presence of Ms Spaans, one of the company employees. It is trite that mutual trust and respect constitute a fundamental pillar in every sustainable employer-employee relationship. In my view, Mr Van Jaarsveld’s unbecoming conduct completely ruined his employment relationship with the company, which rendered his dismissal justified. The misconduct was so serious that the sanction of dismissal would, in my view, have been justified’ (see also Blitz Printers v Commission for Conciliation, Mediation and Arbitration and Others  JOL 33126 (LC), at paragraph ); and
in the labour court’s view, therefore, and based on the seriousness of the misconduct alone, the applicant had earned her dismissal. The conclusion the second respondent arrived at in this regard had therefore to be upheld, as it would simply not be an irregular finding and, in any event, would be a finding that resorted well within the bands of a reasonable outcome.
In general terms, the determination of the fairness of a dismissal requires an arbitrator to form a value judgment, having regard to the interests of both the employer and the employee, and to achieve a balanced and equitable assessment of the fairness of the sanction. What are the types of factors to be taken into account in determining whether the employer had thus acted fairly in deciding to dismiss an employee?