Being rude, disrespectful, or insubordinate towards a superior within the workplace is subject to disciplinary measures. Under common law, discipline must be proportionate to the misconduct and also be intended to correct a behaviour rather than punish the employee. In addition, the discipline must be progressive. This means that discipline is usually multi-staged, which each stage being more sever aimed at correcting similar reoccurring misconduct. For this reason, termination of an employee for a single act of misconduct is a rarely justified.
The principles of progressive discipline do apply for acts of insolence and/or insubordination towards a managerial figure of supervisor. A single act will usually require a verbal or written warning that clearly communicates the misbehaviour and what is expected going forward. Further steps for reoccurring incidents may include suspension or termination. However, there are also scenarios where a single act of insolence and/or insubordination towards a superior may warrant termination, and these standards are established through common law by the courts.
In the case of Henry v. Fox Ltd. the court defined the difference between insolence and insubordination for the purposes of workplace discipline. Generally speaking, insubordination is intentional disobedience of lawful instructions given by a superior and is of more serious misconduct than insolence. Insolence, on the other hand, is contemptuous or abusive language directed towards a superior, and less serious of the two. However, each act may warrant an immediate dismissal if one of the three results from the act itself:
- the act results in the employee and superior no longer being able to maintain a working relationship
- the act undermines the superior’s credibility and, as a result, the superiors ability to supervise effectively in the workplace
- the incident resulted in the employer suffering a material loss, loss in reputation, or the employer’s business interests severely prejudiced
For a single act of insolence or insubordination to warrant a summary dismissal, it usually must take place in front of other employees. The culture of the workplace will be considered. If it is a workplace that tolerates profanity and aggressive behaviour, a single act is less likely to justify a dismissal. Further, if the employer does not impose a ‘cooling off’ period so that the relation may be restored, the courts may see the employer’s decision to terminate in a less favourable light. In all, all relevant factors will be considered when determining whether a dismissal was justified, including the employee’s length of service and disciplinary record. Employers should take a comprehensive approach when deciding to impose immediate dismissal in such instances and legal assistance is always recommended where uncertainty lies.