COLUMN: Following instruction

2016-04-19 06:00

Over the years I have been asked many times whether an employer can dismiss an employee, if the employee refuses to obey an instruction that falls outside of their job description?

This has always been a tricky question as the employee’s job description is not always clearly and precisely defined in their employment contracts.

It is a well-known fact that employees have a duty to act in good faith at the workplace, including the duty of employees to be subordinate and to comply with the instructions of the employer in regard to their duties and work.

Employers have, however, developed job descriptions in order to allocate certain responsibilities to certain employees and to create a framework to promote efficiencies and to ensure accountability. The question remains, to what extent does this impact an employee’s refusal to perform certain tasks which fall outside the scope of their job description?

In Noosi vs Exxaro Matla Coal (June 2015), the Labour Court addressed the issue of insubordination and confirmed an important legal principle in regard thereto.

The case involved an electrician who had refused to obey the instructions of the senior foreman – to cease the operation of a conveyor belt which was operating in dangerous conditions. The employee was charged with, inter alia, gross insubordination and dismissed. He referred the matter to the CCMA, where the commissioner found that the employer acted appropriately and as a result the dismissal was fair. The employee then 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. The court held and supported the position.

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 is 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.

This has a two-fold lesson for both the employer and employee:

. Employers should regularly ensure their employees’ job descriptions are accurate.

. 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 dismissal.

 This column was contributed by Denzil Jacobs, an admitted advocate with expertise in commercial law. Email him on dr.ddj@­hotmail.­com.

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