The Labour Court in Johannesburg has confirmed a decision by the Commission for Conciliation, Mediation and Arbitration (CCMA) that an insurance salesman who was dismissed for gross insubordination must be reinstated.
The salesman (“DN”) was employed by Independent Risk Distributors SA (IRDSA) in April 2018.
According to the Labour Court’s judgment, IRDSA’s chief executive called a staff meeting on 5 December 2018, to address the sales representatives’ underperformance.
“During this meeting, the CEO issued an instruction to all the sales representatives, including the third respondent [DN], to go home and reflect on their performance, and return to the office the next day with a better understanding, having so reflected.”
According to IRDSA, DN challenged and/or undermined the chief executive’s authority during the meeting “by questioning and/or challenging the instruction in a rude and disrespectful manner in the presence of his co-workers”.
This resulted in a disciplinary hearing and DN’s dismissal in January 2019 for gross insubordination.
DN referred an unfair dismissal dispute to the CCMA, where the dispute was referred to arbitration after conciliation and mediation failed.
Evidence during arbitration
During the arbitration proceedings, IRDSA called three witnesses – who did not include the chief executive – and DN called none.
According to the court’s summary of the arbitration proceedings, IRDSA’s general manager testified that the problem was the way in which DN questioned the chief executive. However, he could not recall DN directly refusing to go home.
Another witness testified that DN asked the chief executive questions. However, he said DN interrupted the chief executive every time he tried to speak, “and his tone was unacceptable and disrespectful”.
The company’s third witness testified that DN asked the chief executive questions after the instruction to go home was issued. The staff were scared of losing their jobs, and she did not think DN’s conduct was bad.
In summary, the Labour Court said, IRDSA’s evidence was that DN raised his hands at the meeting after the chief executive instructed the staff to go home and asked why he was part of the poor performers and those sent home to reflect on their performance. The chief executive then became angry and instructed everyone but him to leave, whereupon the general manager told DN that he was being sent home because non-performance was a team issue.
DN denied disrespecting the chief executive or being insubordinate and testified that all he asked was why he was part of the non-performers. He did not refuse to carry out the chief executive’s instruction, but merely sought clarity and left after he spoke to the general manager.
The CCMA found that DN’s dismissal was substantively unfair and ruled that IRDSA should reinstate him in August 2019.
Review application
IRDSA brought the application for the arbitration award to be reviewed on a number of grounds, including that the CCMA failed:
- To consider and/or ignored relevant facts and important evidence submitted during the arbitration; and
- To consider the gravity and seriousness of the misconduct in that a fair and reasonable instruction was repeatedly disobeyed by an employee, which constitutes gross insubordination and warranted a dismissal.
Not gross insubordination
Labour Court Acting Judge Sibusiso Radebe said he was inclined to agree with the Commissioner’s conclusions that the insubordination in question was not gross insubordination that warranted a dismissal. DN had ultimately complied with the instruction.
He said DN’s questions at the meeting were aimed at seeking clarification about why he was also being sent home, despite not having performed poorly, and once that clarification was given, he complied with the instruction to go home. His disrespect or repudiation, as the Commissioner put it, “was not serious, persistent and deliberate, and so does not amount to gross insubordination”.
Acting Judge Radebe said it was “telling” that it was not the chief executive who complained about the manner in which DN asked his questions, but the general manager, “who took it upon himself to be offended” by DN’s questions. The chief executive had not objected to DN’s questions or taken exception to his questions and the way in which they were asked.
He said employees do not lose their constitutional rights guaranteed in the Bill of Rights, such as freedom of expression, merely by reason of being in the workplace.
Costs awarded
Acting Judge Radebe said the general rule was for the Labour Court not to award costs. However, he said IRDSA “should have known” that DN’s conduct during the meeting and asking questions seeking clarification did not rise to the level of gross insubordination. He therefore decided to award costs in favour of DN.
Click here to download the judgment.
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