The Labour Relations Act (LRA), read together with the Code of Good Practice (2025), establishes that dismissal is an appropriate sanction when an employee’s conduct amounts to gross misconduct. While the LRA does not list every type of dismissible offence, it makes clear that the seriousness and intent behind the misconduct are key factors in determining whether dismissal is justified.

The challenge for employers lies in determining when behaviour qualifies as gross misconduct and when a lesser sanction, such as a warning or suspension, may be more appropriate.

In Palluci Home Depot (Pty) Ltd v Herskowitz and Others (2015) 36 ILJ 1511 (LAC), the Labour Appeal Court (LAC) confirmed that an employee’s refusal to comply with a reasonable and lawful instruction, or any deliberate challenge to the employer’s authority, may justify dismissal, provided the conduct is wilful and serious. Insubordination becomes dismissible on a first offence only when there is evidence of deliberate defiance or an intentional refusal to carry out instructions. Employees are also bound by a duty to act in the employer’s best interests and to follow reasonable directives necessary to fulfil their duties.

A recent example is Department of Correctional Services v Kutu and Others (JA27/2024) [2025] ZALAC 17, where a prison guard refused a direct order from a commanding officer to escort a prisoner in need of medical attention. The Labour Court initially set aside the employee’s dismissal, but the LAC overturned that finding, ruling that the lower court failed to consider the context and seriousness of the offence, including the employee’s prior warnings.

The LAC emphasised that assessing whether misconduct is “gross” requires considering all surrounding circumstances: The nature of the work, the specific instruction, and whether the employee’s refusal posed an operational risk or undermined authority within the workplace.

Employers must assess insubordination within context. The relevant factors include:

• The nature of the workplace and the type of work performed.
• The reasonableness and necessity of the instruction.
• The potential impact on operations or safety.
• The employee’s disciplinary record and attitude.
• Whether the refusal was deliberate or justified.

Only when these considerations point to a wilful and serious defiance should dismissal be regarded as appropriate in the circumstances.

Tips:

Distinguish Misconduct from Gross Misconduct

Not every act of defiance or disobedience warrants dismissal. Before imposing a sanction, evaluate whether the employee’s conduct was deliberate, serious, and damaging to the employment relationship. Record your reasoning to demonstrate that dismissal was proportionate and fair.

Apply a Contextual, Evidence-Based Approach

Always weigh the operational circumstances, nature of the instruction, and the employee’s intent. Ensure that your disciplinary chairperson considers these factors before reaching a finding. This holistic approach aligns with recent case law and protects the decision from being overturned on review.

Written by Wesley Lazarus, Dispute Resolution Official (CEO SA)