Hogan Lovells Publications | Sowetan | 20 August 2013

Respect in the Workplace

As with any agreement entered into between two parties, there are duties and obligations which flow from the employment relationship. Such duties and obligations are often set out expressly in the employment contract.

The employment contract can either be in writing or oral and both parties are expected to adhere to its terms.

One such duty is an employees duty to be respectful and obedient to the employer. The law recognises this duty as an implied term of the employment contract and employees are obliged to respect and obey their employers. The employees duty of obedience applies only to work-related orders and to instructions that are lawful and reasonable.

The yardstick in determining whether an employees conduct is considered to be disobedient and disrespectful was laid down in many cases that have come before recognised employment-related tribunals including the Labour Court.

In one of the cases it was held that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show that the employee is repudiating the contract, or one of its essential conditions ... the disobedience must at least have the quality that it is wilful: it does (in other words) connote a deliberate flouting of the essential contractual conditions.

The act of disobedience must therefore be intentional and intended to undermine the authority of the employer. The conduct should pose a deliberate (wilful) and serious challenge to the employers authority.

Such conduct can be verbal or by conduct, for example, tearing up a written instruction issued by an employer in the employers presence.

In determining whether an employee has breached the duty of respect and obedience, an important distinction must be made between insolence and insubordination.

An employee can be insolent without necessarily being insubordinate (disobedient or challenging authority). Mere disrespect for the employer cannot by itself constitute insubordination.

Contemptuousness of authority (insolence, impudence, cheekiness, disrespect or rudeness) can still constitute a ground for dismissal. Each incident of insolence will be determined on its own facts and circumstances.

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