Provided By Cowan-Harper-Madikizela By Neil Coetzer & Thato Matloko
In TMT Services and Supplies (Pty) Ltd v CCMA and 2 Others [JA32/2017] the Labour Appeal Court recently had occasion to clarify the issue of when dismissal would be appropriate for acts of insubordination.
In this case, TMT Services and Supplies (Pty) Ltd (“the employer”), dismissed the employee for gross insubordination after the employee refused to obey an instruction issued to her by her line manager. The instruction issued was for the employee to attend a meeting in order to discuss her poor performance. On 25 April 2013, the employee’s manager gave her an instruction to attend a meeting at 07h00 the following day in order to discuss the findings of an audit that had been conducted on the employee’s work performance. The instruction was issued to the employee four times, although the employee would later contend that no instruction was issued to her.
The employee sought to have the meeting postponed by sending an email and a subsequent SMS to her manager stating, inter alia, that she was uncomfortable about the presence of another employee at the meeting, that no formal notice had been given to her to attend the meeting and that she had not been provided with an agenda for the meeting.
The employee failed to attend the meeting and instead, at 07h16 on the morning of the meeting, she sent another email to her manager informing her that she was not on the premises where the meeting was scheduled to take place but that she was instead at the employer’s depot. Owing to the employee’s absence the manager chose to postpone the meeting with the employee.
A disciplinary enquiry was convened and the employee was dismissed for insubordination.
The employee referred the matter to the Commission for Conciliation, Mediation and Arbitration (“CCMA”) and at the arbitration, the Commissioner held that the employee had defied an instruction issued by her manager and that the dismissal was fair. The employee then took the matter on review to the Labour Court.
The Labour Court set aside the arbitration award, finding that the award made by the CCMA Commissioner was unreasonable. The Labour Court found in favour of the employee and ordered the employer to pay the employee her remuneration for the remaining portion of her fixed-term contract from the date of dismissal, which amounted to approximately three years’ worth of her remuneration.
The Labour Appeal Court (“the LAC”) stated that the enquiry into the gravity of insubordination requires the consideration of three aspects, namely the action of the employer prior to the deed, the reasonableness of the instruction and the presence of willfulness by the employee. The LAC held that in this case, the only controversial aspect was the presence of willfulness on the part of the employee.
In that regard, the LAC found that the employee’s failure to attend the meeting contrived the postponement of the meeting by presenting the employer with a fait accompli and that this was the true gravamen of the matter. The LAC also clarified that the mere repetition of an instruction does not affect the giving of an instruction and its defiance.
The LAC held that the employer’s managerial prerogative to issue instructions to its employees is a principle that is protected by the misconduct known as insubordination. This principle ensures that the operational requirements of the organisation are not weakened by insubordination on the part of employees.
The LAC further held that the foundation of the employer and employee relationship is premised on the employer’s instructions being followed by the employee and that it is intolerable that an employer is forced to engage in negotiations regarding day to day organisational arrangements with employees. The LAC stated that the effect of the employee’s refusal to attend the meeting was to undermine the working relationship with her manager.
In conclusion, the LAC upheld the appeal and confirmed the Commissioner’s finding that dismissal was fair.
The judgment is a timely reminder that an instruction that is fair and reasonable need not be repeatedly disobeyed by an employee before such action constitutes gross insubordination. Employees are required to follow the instructions of their employers at all times. A failure to do so may ultimately result in their dismissal.