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Employee’s duty to obey Employers Reasonable Instructions

2nd August 2016

After the suspension, and subsequent dismissal of eight journalists by the South African Broadcasting Corporation (“SABC”), culminating in litigation against the SABC, the question of whether refusal by employees of obeying instructions issued by an employer will in all circumstances result in the issuing of a warning and/or suspension and/or ultimately dismissal.

It is important to note that there is an implied duty, which forms an integral part in the employment relationship between an employee and employer, that places an obligation on an employee to respect and obey his employer, which includes his appointed superior.

The Code of Good Practice on Dismissal states that dismissal would be reasonable for gross insubordination, although dismissal of an employee on a first offence is not considered an appropriate sanction. The essential elements to prove insubordination according to Brassey et al, The New Labour Law, are:

  • an order, even be in the form of a warning, was given by the employer to the employee;
    • the relevant order must be lawful;
    • the order was reasonable.

It was held by the Labour Appeal Court in Motor Industry Staff Association and another v Silverton Spraypainters & Panelbeaters (Pty) Ltd & two other {2012} ZALAC 42(LAC) that:

“It is trite that an employee is guilty of insubordination if the employee concerned wilfully refuses to comply with a lawful & reasonable instructions issued by the employer.  It is also well settled that where the insubordination was gross in that it was persistent, deliberate & public a sanction of dismissal would normally be justified.”

What would constitute valid refusal by an employee of an order given by an employer?

  • A situation where an employee is not capable of performing the instruction, as he/she does not have the requisite qualification to attend to the task, which will effect render the instruction unreasonable.
  • The instruction issued by the employer does not fall within the ambit of the employers job description and amount to an unilateral amendment of the employment contract
  • An unreasonable instruction being issued by the employer.

Past case law was very much in favour of the Employer, as the courts found dismissal justified based on the conduct resulting in the irretrievable breakdown of the employment relationship.

The judgment delivered in Solidarity and Others v South African Broadcasting Corporation delivered on 26 July 2016, did not substantially deal with the issue of refusal to comply with an issued instructions by the employer, which had been the reason for suspension of the journalists, but rather premised on the fact that they criticized their suspension and SABC management in the media contrary to condition contained in their contracts of employment.  It was however briefly mentioned by Judge Lagrange, stating the following:

“There is also the question of the suspensions and the incomplete enquiries which were initiated prior to the applicants’ dismissal.  It was argued by the SABC that those would fall away as the fact of the applicants’ dismissal would have that effect.  However, if the legal consequence of the final relief is that the dismissals did not happen, it does not seem to follow in my view that everything preceding them has no application.  AS those enquiries were essentially initiated for the same reason as the dismissal or because of the applicants’ disagreement over adopting the policy, it would follow from the analysis above that those instructions and steps were unlawful because they were premised on the enforcement of an unlawful policy.”

It is evident, that Employers do not have carte blanche in the issuing of any instructions to an employee expecting blind compliance, and that any dismissal on this basis would need to be carefully evaluated to prevent costly legal litigation for unfair dismissal.  Equally employees need to be aware that they are only entitled to refuse to obey an unlawful and unreasonable instruction.

Disclaimer: This article is not intended to provide legal advice and does not intend to address any specific or existing circumstances.

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