Act in haste, repent at leisure!
One of our clients, a trucking company, had won an appeal in the Labour Court initiated by a driver whom they dismissed for gross insubordination. But they were lucky! The case could have been lost on a technicality – namely the difference between insubordination (which usually warrants dismissal) and insolence (which might not).
The company received an e-mail complaint from a major customer about its drivers not checking their cargo against documentation. This was an on-going problem and the customer had indicated that if the matter was not satisfactorily addressed, the company’s haulage contract would be cancelled.
The Operations Director (OD) called a meeting on Friday afternoon with the drivers on shift that day to discuss the seriousness of the problem. He had no sooner begun talking when the appellant, a driver, interjected in a rude and aggressive manner, wanting to know the name of the person who had sent the e-mail.
The OD pointed out that the name of the person was not important – the problem of drivers not checking their cargo had to be addressed. The appellant continued to interject stating that there were persons within the customer’s company who were trying to sabotage the haulage contract. The OD, somewhat exasperated by now exclaimed “It is not who f****** sent the e-mail. We need to address this issue seriously. The customer is threatening to pull the contract.” (Industrial language not being uncommon in the business!). He also pointed out that even if the appellant’s theory were correct, by not following instructions, drivers would be playing into the hands of any persons wanting to sabotage the contract.
The appellant once again objected again loudly and aggressively preventing anyone else at the meeting from speaking. This prompted the OD to suggest to the appellant that he could leave the meeting if he was not prepared to listen to the customer’s complaint.
The appellant continued to interject and the OD asked him to leave the meeting. The appellant swore at the OD stating “F*** you. I don’t have to listen to this s***!” and walked out of the meeting. The OD looked out of the window and noticed the appellant headed in the direction of the administration block with his documentation in his hand. He called out to the appellant to stop and to hand over this documentation.
The appellant ignored him and entered the Administration block. Given the time and the appellant’s conduct, this was of concern to the OD as the administration staff had already left and he did not want unauthorised personnel in the building where there were confidential documents.
The OD then followed the appellant into the building and stopped him in the passage outside the Managing Director’s office. The appellant then proceeded to swear at and verbally abuse the OD at the top of his voice. The MD who was on a telephone call to another customer at the time broke off his conversation to find out what was going on. Even the customer wanted to know what all the noise was about!
Eventually, the OD managed to persuade the appellant to step into his office where he advised him to think very carefully about what he was doing. The appellant then said “If you are not interested in what I have to say, I am not ‘f*******’ interested in what you have to say!”
The OD took the appellant’s documents from him and told him to report on the following Monday to collect a notice to attend a disciplinary enquiry. (The Appellant claimed that the OD had snatched the documents from him.)
When the appellant returned on Monday, he did not apologise for his conduct or show any remorse whatsoever. A disciplinary enquiry followed in due course with the appellant being charged with gross insubordination and failing to follow a lawful instruction. After numerous witnesses corroborated OD’s version of events the appellant was found guilty by the chairperson.
Two years previously, the appellant had received a final warning for disobeying a customer’s weighbridge procedure and for being verbally abusive to the customer’s security manager. The MD also testified that he had personally warned the appellant about being argumentative and raising his voice to him.
Given that by this stage there appeared to be a complete breakdown in the employment relationship, the chairperson dismissed the appellant. Reasons given were gross insubordination in that he had disrupted a driver meeting, he had refused to stop when instructed to do so and he had sworn at and verbally abused the OD.
The case went to the Bargaining Council for conciliation and then to arbitration by the CCMA.
The Commissioner found in favour of the employer but noted that he was not convinced that the appellant had failed to comply with the OD’s instruction not to go into the administration building. He acknowledged that the OD had shouted out the instruction but he was not convinced that the appellant had heard it.
He further noted that with regard to gross insubordination, the appellant was dismissed for using foul language directed in a personal manner towards a senior member of management. He noted that although foul language was often used during work interactions, the OD had not directed it in a personal way at the appellant, whereas the latter had done just that.
Quoting testimony from witnesses which was not refuted he observed “In my view, to tell a senior manager to “F**** off, I don’t have to listen to this s***!” amounts to nothing less than gross insubordination.”
The appellant took the case on review to the Labour Court where the appellant’s attorney argued that the commissioner had erred in finding the appellant guilty of gross insubordination. The appellant was guilty of insolence and as such, the sanction of dismissal was too harsh.
Fortunately for our client, his advocate was able to get the case dismissed with costs on a legal technicality. But it could have gone the other way!
So what are the lessons? First of all, one needs to distinguish between insubordination and insolence. Insubordination entails a deliberate intention to defy an employer’s authority where this is serious, persistent and deliberate. This is not to be confused with insolence or impudence, which take the form of disrespect to authority. Drake vs Professional Career Services (Pty) Ltd LC J1692/99.
The second lesson is that one should be very clear about giving instructions, especially when tempers are raised, which is often the case when instructions are deliberately refused or ignored. Some useful guidelines are as follows:-
- The instruction must be lawful and reasonable. An employee cannot be expected to carry out an instruction which would subject him to danger not normally connected with the performance of his duties or which could result in him facing disciplinary or criminal charge. The instruction should be reasonable – e.g. within the employee’s ability and within reasonable time frame (during working hours).
- Give the instruction to the employee in a clear and unambiguous manner.g. “I am giving you a lawful instruction to……………….”
- Explain the consequences if the employee refuses to obey the instruction.g. “Your refusal/failure to obey this instruction will constitute a serious disciplinary offence and will result in a disciplinary enquiry. If found guilty you could be dismissed.”
- Give the employee a deadline by which to carry out the instruction. This should be reasonable and allow a ‘cooling-off’ period, during which the employee has an opportunity to consider the consequences of failing to carry out the instruction.
- Put the instruction in writing and ask the employee to sign acknowledgement of receipt. If he refuses to sign call in a witness and read the instruction and ask the witness to sign.
- If the employee does not obey the instruction by the time of the deadline, give notice of a disciplinary enquiry and suspend from work.
A final thought, count to ten if you are angry. If after that you are still angry, count to ten again and again until you are calm!!
Bruniquel & Associates
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