Labour Law Risk Series | Part 2

From childhood, we learn how to navigate different personalities — how to negotiate conflict, read social cues, and manage relationships.

Ideally, these skills mature as we enter the workplace, where healthy interaction is essential to building strong teams and achieving organisational goals. But ideals are not always realised.

Workplaces are human environments. Conflict, miscommunication, and personality differences are inevitable.

When relationships begin to fray, the issue is often dismissed as a personality clash. In law, however, it may fall into one of three very different categories: bullying, insubordination, or incompatibility.

Although these issues may arise from similar interpersonal tensions, the legal consequences of each are worlds apart.

It usually starts messily. Complaints, tension, silence, missed deadlines, someone withdrawing, someone becoming defensive. A manager and subordinate may be struggling to communicate, deadlines may slip, or someone may simply be described as “difficult”. Almost instinctively, the situation is labelled as insubordination or insolence.

But that label is often wrong — and the cost of getting it wrong can be significant.

By the time HR is asked to step in, the issue has often already been labelled incorrectly, and the entire process is on the wrong track. A misconduct process is followed where an incapacity process is required; a personality conflict is treated as defiance; bullying is dismissed as a communication issue or a difficult employee.

By the time the matter escalates, the employer’s initial assessment becomes the central point of scrutiny.  

Three Distinct Legal Concepts

Insubordination or Insolence

Insubordination and insolence fall within the realm of misconduct.

Insubordination involves the wilful refusal to comply with a reasonable and lawful instruction, either through a single serious act or persistent defiance.

Insolence, on the other hand, concerns disrespectful or impudent behaviour that undermines the duty of respect owed to the employer.

But not every disagreement or moment of frustration meets this threshold.

Context and intent matter.

A single instance of rudeness does not automatically amount to misconduct and treating it as such can derail the process from the start.

Bullying (Harassment)

Bullying is fundamentally different. It is not about authority — it is about basic human dignity.

The Code of Good Practice on the Prevention and Elimination of Harassment recognises bullying as a form of harassment, which in turn is a form of unfair discrimination.

Harassment may be repeated, or it may occur as a single serious incident. It may be overt or subtle, verbal or non-verbal, and it may occur in person or online.

What matters is that it creates a hostile, intimidating, or demeaning working environment.

The Code places a positive obligation on employers to eliminate harassment, implement policies and reporting mechanisms, and take active steps to prevent recurrence.

Failure to act is not neutral – it becomes a source of liability under section 60 of the Employment Equity Act.

The risk extends beyond internal discipline and includes harassment disputes, constructive dismissal claims, and scrutiny of the employer’s statutory compliance.

Incompatibility

Incompatibility is different again. It is not misconduct, and neither is it fault based.

It arises where the working relationship has deteriorated to the point where it is no longer sustainable, whether due to personality clashes, workplace cultural misalignment, or persistent interpersonal conflict.

Because incompatibility is a form of incapacity, it requires a structured, fair process focused on identifying the cause of the breakdown, exploring solutions, and determining whether continued employment is viable.

Attempting to force incompatibility into a misconduct framework is a common — and legally fatal — error.

Equally, employers cannot disguise incompatibility as restructuring, as confirmed in Zeda Car Leasing (Pty) Ltd t/a Avis Fleet v Van Dyk.  

The Cost of Getting It Wrong

The real danger lies not in the behaviour itself, but in how it is understood.

Once a dispute is referred, the question is no longer limited to whether an employee committed harassment or misconduct.

It becomes: What did the employer do, or fail to do?

If the employer was aware of the situation and cannot demonstrate that it took reasonable steps to address it, it may be deemed liable as though it committed the act itself.

With proposed amendments to the Employment Equity Act enabling employees to refer unfair harassment disputes directly to the CCMA for arbitration, the employer’s systems, responses, and inaction will be placed under a sharper spotlight than ever before.

Harassment is no longer an internal HR issue that can be managed quietly. It is a statutory obligation, and the employer’s conduct is part of the legal test.

Managing these situations effectively does not begin with discipline. It begins with correctly identifying the nature of the issue and aligning the response accordingly.

That distinction is where sound judgment and reduced risk lies.

In labour law, risk does not arise only from what happens in the workplace. It arises from how those situations are interpreted, labelled, and addressed.

A misdiagnosis at the outset is not a small administrative error — it is the first step toward legal exposure, reputational harm, and avoidable liability.

About the Author
Samantha Govender is an admitted attorney and founder of Clause & Counsel, advising organisations on employment risk, workplace governance and commercial structuring.

This content is provided for general informational purposes only and does not constitute legal advice. No attorney-client relationship is created. Specific legal advice should be sought based on individual circumstances.