The Difference between Insubordination and Insolence

Employers should be very careful when they draft charges against an Employee and ensure that they understand the difference between Insubordination and Insolence.

The Labour Appeal Court has recently considered the difference between Insubordination and Insolence in Pallucci Home Depot (Pty) Ltd v Herskowitz and Others (2015) 5 BLLR 484 (LAC).

The Court held that:

1. Normally INSUBORDINATION amounts to resistance or defiance of authority, disobedience and refusal to obey an order of a superior.
2. However, Insubordination may also be found to be present where disrespectful conduct poses a deliberate (willful) persistent and serious challenge to, or defiance of the Employer’s authority even when there is no indication of an instruction having been issued or defiance of an instruction.
3. It is therefore not always essential for an instruction to be given or disobeyed to find a challenge to the Employer’s authority.
4. The refusal by an Employee to carry out an Employer’s instruction is therefore not always required for a finding of insubordination.
5. Insubordination is “the willful and serious refusal by an Employee to obey a lawful and reasonable instruction or where the conduct of an Employee poses a deliberate (willful) and serious challenge of the Employer’s authority”.  In other words, it amounts to persistence or defiance of authority, disobedience and in most instances, the refusal to obey an order of a superior.
6. In deciding if misconduct amounts to insubordination, a number of factors should be considered:
   • the wilfulness of the Employee’s defiance;
   • the reasonableness of the order that was defied; and
   • the actions of the Employer prior to the purported act of insubordination.
7. INSOLENCE – is the offensive, disrespectful, cheecky and rude behaviour towards the Employer.
8. There is a fine line between Insubordination and Insolence, but insolence may very well become insubordination where there is an outright challenge to the Employer’s authority.
9. Should an Employee be provoked into committing insolence or insubordination, it may be considered a mitigating factor
10. The sanction of dismissal should be reserved for instances of gross insolence and gross insubordination.
    
11. An Employer should therefore consider these differences carefully in finalising charges of Insubordination and Insolence against an Employee.