Employee who refused a reasonable instruction and displayed insolence fails to overturn dismissal

The conduct of an employee who refused to carry out a reasonable instruction from her employer amounted to insubordination and warranted her dismissal. 

The labour court made this determination last week when it dismissed an application by former South African Property Owners Association’s (Sapoa) membership relations officer Beryl Tshaka, who was dismissed in 2018 after she refused to attend a meeting scheduled with a prospective client. 

The client had indicated an interest in becoming a member of Sapoa.  

Tshaka had sought to review the decision by the Commission for Conciliation, Mediation and Arbitration (CCMA), which declared her dismissal was procedurally and substantively fair. 

She had refused both in writing and verbally to attend the meeting scheduled for December 4 2017. She indicated she had another meeting set up for the same time, that she was not part of previous discussions regarding the prospective client, that she was notified at short notice and that she did not ordinarily attend face-to-face meetings. 

Despite the reasons given by Tshaka, her manager insisted she should attend the meeting. 

An altercation ensued between Tshaka and her manager in which  Tshaka was allegedly rude to her manager and the HR officer. She was placed on suspension with full pay in December 2017. 

Tshaka was charged with gross insubordination, dereliction of duties, insolence and threatening her manager. She was found guilty and dismissed. 

Aggrieved by the decision, Tshaka referred a dispute and alleged unfair dismissal to the CCMA, which found her dismissal was fair. 

Tshaka then applied to the labour court for the review of the CCMA decision. Tshaka said the CCMA failed to properly consider the facts before it and committed gross irregularities.

In his judgment, judge Graham Moshoana said the grounds raised by Tshaka in her review application were nothing but appeal grounds, while the court only had review powers. 

“A gross irregularity arises in an instance where a party is not afforded a fair trial of issues. It is clear to this court Tshaka was indeed afforded a fair trial of issues," Moshoana said.   

He said the fact that the CCMA decided the dispute against her did not imply Tshaka did not have a fair trial of issues. 

Moshoana said the facts showed the employee failed to carry out what was clearly a reasonable instruction from the employer. "That conduct amounts to insubordination. The labour appeal court has already concluded employers should not negotiate instructions with employees," he said.

Moshoana said it was also common cause Tshaka had stated to the HR officer that he must "shut up".

"Clearly this is conduct that displays insolence and disrespect to authority."

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