By Neil Coetzer, Senior Associate, Employment Law, Benefits & Industrial Relations, Cowan-Harper Attorneys
It is a well-known principle of our law that employees have a duty of good faith towards their employer. The duty of good faith is a general duty and encompasses various aspects, including the duty of employees to act in a subordinate manner and comply with the directions and instructions of the employer in regard to their daily duties and work. Employers have, however, developed job descriptions in order to allocate certain tasks to certain positions in order to promote efficiencies and to ensure accountability. To what extent does this impact on an employee’s refusal to perform certain tasks which he or she believes falls outside the scope of their job description?
In Noosi v Exxaro Matla Coal & Others (unreported case JR291/11, 25 June 2015), the Labour Court recently had the opportunity to deal with the issue of insubordination and confirm an important principle in regard thereto. The case involved an electrician who had refused to obey the instructions of the Senior Foreman (and Head of Maintenance) who had instructed him to cease the operation of a conveyor belt which was operating in dangerous conditions. The employee was subsequently charged with, inter alia, gross insubordination and dismissed. He subsequently referred a dispute to the CCMA where the Commissioner found his dismissal to be fair.
The employee subsequently took the matter on review where the Labour Court found that the test for insubordination is not whether the instructions fall within the job description of the employee, but rather whether the instructions were reasonable and lawful. In particular, the Court aligned itself with the sentiments expressed in Exxaro Coal Mpumalanga Ltd v CCMA & Others (unreported case JR269/11) where the Court held as follows:-
“…Should it be shown that the instruction was unlawful, it would be the end of the inquiry. If it is found that the instruction was lawful, the expectation is that the employee to whom such instruction was issued should have complied. It will have little, if any, to do with whether the instruction related to the employee’s job description because it will never be a justification for an employee to refuse lawful instructions merely because the instructions are not his or her direct functions.”
In any event, the evidence showed that the instruction did fall within the employee’s job description and the employee’s dismissal was found to be fair.
Employers should regularly revisit job descriptions to ensure that the day to day responsibilities of employees are contained therein. Nevertheless, as shown by this judgment, employees still have an overriding duty of good faith to their employers, whether the instruction falls within their job description or not and a failure to comply with instructions which are reasonable and lawful may be sufficient grounds for a summary dismissal.
For more information please contact Neil Coetzer at firstname.lastname@example.org or (011) 783 8711 /(011) 048 3000
Article published with the kind courtesy of Cowan-Harper Attorneys www.cowanharper.co.za