The concept of insubordination means ‘refusal to obey a lawful and reasonable instruction’. Gross insubordination can be a ground for dismissal. However, the employer has the onus of proving that the act was, in fact, one of insubordination and that it was gross (very serious).
An employer’s belief that insubordination has occurred can easily trigger an emotional response from the executive who issued the instruction. Senior executives often react strongly when employees challenge their authority. Consequently, feelings of anger can lead to emotional and disproportionate construction of charges against the alleged offender.
In many cases, exaggerated charges can weaken the employer’s position instead of strengthening it.
The Neumann case
In the case of Wesley Neumann vs Western Cape Education Department, a public school principal was dismissed for insubordination and for bringing the employer’s name into disrepute.
After the arbitrator upheld the dismissal, the employee referred the matter for review to the Labour Court. The incident that led to the dismissal occurred during the height of the COVID-19 pandemic. Half of the teachers employed at the school were absent because of COVID-19. In addition, two of the three employees responsible for sanitising the school were also absent. The third employee refused to perform sanitising duties because of a labour dispute.
At the same time, people connected to the school were dying from COVID-19. Protective equipment had not arrived at the school, while staff members pressured the principal to protect them from the danger posed by the virus.
The instruction and the response
Mr Neumann, the school principal, advised parents not to send their children to school. He then disobeyed an instruction from his superior, the Education Department’s HOD, who instructed him to tell parents that children had to attend school. Instead, Neumann posted a statement on social media.
In the statement, he accused his superior of Baasskap and described the superior as unintelligent and reckless. These actions formed the basis for the charges of insubordination and bringing the employer’s name into disrepute.
The Labour Court found that:
- Neumann’s comments were neither racist nor insubordinate. Instead, they amounted to insolence, which is a less serious offence.
- Neumann committed misconduct during a period of extreme pressure.
- Under the circumstances, disobeying the instruction to return pupils to school was not unreasonable because COVID-19 was widespread and people were dying.
- Principals from other schools had publicly criticised the HOD and had not faced discipline.
- Neumann had an extensive service record.
- Employees who worked closely with him believed that the employment relationship had not broken down.
- The employer weakened its claim that the employment relationship had been destroyed when it offered Neumann an alternative senior post.
- The employer failed to consider progressive discipline in this matter.
The cost of exaggerated charges
The court ordered the employer to reinstate the employee with three years of backpay. Even if Neumann earned only R30,000 per month, the backpay would have exceeded R1 million. Furthermore, the cost of the lengthy litigation likely exceeded that amount.
The outcome of this case highlights the danger of formulating disciplinary charges while decision-makers feel angry. 
Employers should understand that emotional reactions can cloud judgment and produce disproportionate disciplinary action. In addition, decision-makers must recognise that many circumstances can mitigate the seriousness of employee misconduct. Even where misconduct exists, employers should avoid exaggerated charges and should instead assess the matter objectively before imposing discipline.
Ivan Israelstam | Chief Executive | Labour Law Management Consulting | mail me |