When cheeky becomes insolence – Your ticket out!

“Kindness is strength. Good-nature is often mistaken for virtue, and good health sometimes passes for genius. Anger blows out the lamp of the mind. In the examination of a great and important question, everyone should be serene, slow-pulsed, and calm. Intelligence is not the foundation of arrogance. Insolence is not logic. Epithets are the arguments of malice.” –  Robert Green Ingersoll , The Christian Religion: An Enquiry

Introduction

Given the nature of our deadline driven, go-go-go, stressful working environments, we often have everybody near close to high tension boiling points; and sometimes we find ourselves, forgetting the need to maintain our professional cool, and the wrong thing flies off of the tongue.

Showing disrespect in the workplace, especially towards your employer, is highly frowned upon within the labour law framework, and may be considered a dismissal offence.  

What constitutes Insolence?

In Enviroserve Waste Management (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others [2016] ZALCPE 23, the Court defined insolence as “generally equated with conduct which is offensive, disrespectful, impudent, cheeky, rude, or insulting. Such conduct may be verbal, in writing or through demeanour, and invariably has the consequences of demeaning the person it is directed at or his or her authority.”

When is insolence gross in nature?

It is difficult to create a hard and fast rule for what would amount to gross insolence. However, the courts distinguish between insolence and gross insolence, in order to establish an appropriate sanction. Whether the insolence in question is gross or not, would be decided after considering the given circumstances in question.

Gross insolence is deemed a serious act of insolence that has as its elements wilful contempt of the employer’s authority. Dismissals for insolence are warranted in instances where the insolence in question is of a gross nature and the circumstances do not justify the contempt.

In Palluci Home Depot (Pty) Ltd v Herskowitz & others (2015) 36 ILJ 1511 (LAC), the Labour Appeal Court (LAC), held that the sanction of dismissal should be reserved for instances of gross insolence and gross insubordination. The common law duty of an employee to act in good faith towards their employer; is reiterated under the contract of employment. The contract, verbal or in writing, implies a duty of respect and obedience towards the employer with the understanding that any repudiation thereof will constitute a fundamental and calculated breach by the employee. The LAC further held that unless the insolence was of a particularly gross nature, an employer must issue a prior warning before having recourse to the final act of dismissal.

The purpose of distinguishing between gross forms of misconduct versus ordinary forms of misconduct is necessary to determine whether a dismissal was the only fair outcome after a breach.

When can insolence warrant a dismissal?

Offences of mere insolence is not in itself sufficient to warrant a dismissal. What is defined as “mere insolence” will obviously depend on the circumstances and conduct in question. For insolence to warrant a dismissal, it must by all accounts be wilful and serious in nature, with the result that the employment relationship has irreparably broken down. In essence, the insolence has to be of a gross nature.

In Enviroserve Waste Management (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others [2016] ZALCPE 23, it was held that the offence of insolence would only justify dismissal where it is wilful and serious with the result that the employment relationship breaks down irretrievably.

As an employee, you have an obligation to maintain professional courtesy in the workplace towards your colleagues and managers. Losing control of your emotions when angered and acting in a disrespectful way towards your employer is a sure way to end your employment, especially if the conduct is persistent or particularly gross in nature. Insolent conduct has the ability to sever the trust and working employment relationship, rendering it intolerable.

In Wasteman Group v SAMWU [2012] 8 BLLR 197 (LAC) the court held that “generally it is not appropriate to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable.”

Conclusion

Dismissal for insolence would only be justifiable in instances where the circumstances surrounding the incident were sufficiently serious and wilful. You should exercise caution with how you react or conduct yourself. Remove yourself from the situation and choose wisely, as the way you react might render the continued employment relationship intolerable.

Remember, you have the power to report your employer in instances whereby you suffer abuse, or mistreatment, by following grievance procedures. MISA suggests that you bite your tongue; take 10 deep breaths; walk away calmly and regain composure before responding in situations of high tension. 

MISA – Just a phone call or an e-mail away!

(Article by Tumi Ntshekang, Edited by Nichole Turner)

#MISACARES #MISAONTHEMOVE

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