BY lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted via 011 888 7944 or 082 852 2973 or [email protected]. Go to: www.labourlawadvice.co.za.
Item 3(4) The Code of Good Practice: Dismissal (the Code) lists some examples of offences that might merit dismissal even in the absence of prior warnings. Included in this list is the offence of “gross insubordination”. The concept of insubordination means ‘refusal to obey a lawful and reasonable instruction’.
Despite the potential seriousness of “insubordination” employers would be wrong to assume that the refusal to obey a lawful and reasonable instruction will always justify dismissal. In fact, refusal to obey an instruction may, in some cases, not even constitute misconduct!
In the case of MITUSA obo Clarke vs National Ports Authority (2006, 9 BALR 861) the employee, a Tug Master, was dismissed for refusing to obey a lawful and reasonable instruction from the tug boat’s Pilot. The Pilot had instructed the Tug Master to tie the tug’s rope to the bow (front) of the ship to be boarded. However, the employee refused to do so on the grounds that it would be dangerous to follow the instruction. As the employee had already received a final warning for insubordination she was fired.
The arbitrator found, amongst other things, that:
- In terms of the employer’s policy and international practice Pilots carry out boarding operations at their own discretion
- Decisions of Pilots as regards boarding operations are final
- The instruction given by the Pilot had been both lawful and reasonable
- However, when manoeuvring their vessels to carry out the Pilot’s instructions Tug Masters must avoid risks
- According to standing orders, should the safety of the tug be at risk, the Tug Master may disregard the Pilot’s instruction
- Had an accident occurred after the rope had been secured to the front of the vessel the Tug master would have been blamed
- While the Pilot’s instruction was lawful and reasonable and may have been seen by others as being a safe one the Tug Master had the right to a different opinion and to act on that differing opinion because she was responsible for the tug’s safety
- Contrary to the subsidiary charges the employee had neither been argumentative nor had behaved in an unprofessional manner
- Despite the validity of the Pilot’s instruction the Tug Master had not committed insubordination; she had exercised her professional discretion as she had been entitled to do
- The dismissal was substantively unfair
- The employee was to be reinstated with full back pay which amounted to eight months’ remuneration and benefits.
The remarkable aspect of this case is that the arbitrator found the dismissal to be unfair despite the fact that the employee had definitely disobeyed a lawful and reasonable instruction. The reason for this unusual finding was based on the unique circumstances of the case. These were:
- The employee did not believe the instruction to be reasonable on the grounds that it was unsafe
- Her opinion was based on her own view of what was dangerous practice
- Her opinion was within the bounds of rationality
- Her refusal to obey the Pilot’s instruction was based, not on a desire to flout authority, but rather on her professional opinion relating to safety which, according to orders, was paramount.
- There appeared to be a personal issue influencing the dismissal.
Employers must therefore avoid basing dismissal decisions on personal attitudes. Instead, expert advice should be sought to establish whether the employee truly committed an offence.
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