by K-Ci Henry | May 17, 2021 | Legal
South African employees are so heavily protected by the Constitution, by labour legislation, by the Labour Courts the CCMA and trade unions that they
are less often afraid to defy the employer’s instructions. For the employer the resulting insubordination is a nightmare.
This is especially so where the employer is ill-equipped to deal with insubordinate employees and fails to understand:
What insubordination really is
How it differs from disrespect
What a reasonable instruction is
When a charge of insubordination is not appropriate
How seriously the law views insubordination
How it should be dealt with
WHAT IS INSUBORDINATION?
The Collins Concise Dictionary defines “insubordinate” as “not submissive to authority, disobedient or rebellious”. It is the refusal of an employee to bow to
the authority exercised reasonably by the employee’s superior.
This could include conduct such as:
Refusal or intentional failure to obey reasonable and lawful instructions
Comments such as “You have no authority over me”
Telling the manager to go and get what he/she wants from someone else
INSUBORDINATION VS DISRESPECT
Insubordination applies only upwards and can only be perpetrated by a junior towards a senior. Disrespect, on the other hand, can apply upwards and
downwards. For example, it would be disrespectful for a manager to shout at an employee and tell him/her to ‘get out of the office’. Disrespect is therefore
not necessarily linked to a person’s position of authority but can also be linked to one’s human dignity.
WHAT IS A REASONABLE INSTRUCTION?
In my view a reasonable instruction is one that:
The employee is capable of carrying out and
Involves a task that is not substantially beneath the employee and
Does not infringe the rules of the employer or the laws of the country and
Involves a task that truly needs to be done.
For example, if the boss tells the Human Resources Manager on a 4-day week contract to come in on the weekend to repair the faulty elevator the HR
Manager might be entitled to refuse because The HR Manager is being required to carry out a task:
That is completely outside the sphere of the HR Manager’s duties
Outside of the HRM’s capabilities
Assigned for a time that is not normally worked
That, if carried out by the HRM, could result in danger to users of the elevator.
However, telling the HRM to conduct recruitment interviews because the HR Officer is in hospital would, in most cases, be both legal and reasonable.
WHEN A CHARGE OF INSUBORDINATION IS NOT APPROPRIATE
Insubordination is not the same as poor work performance. That is, poor work performance relates to how badly the employee has performed work or
missed deadlines. While poor work performance can sometimes be wilful there is usually some work that is done albeit badly and the poor performance
occurs regardless of whether the employee has been given an instruction. On the other hand Insubordination means the employee’s refusal to obey a
specific instruction whether the instruction relates to work performance or not. Employers confuse these two concepts at their peril. For example, in the case
of Fourie vs Capitec Bank (2005, 1 BALR 29) the employee was dismissed for insubordination. The dismissal decision was influenced by the fact that the
employee had previously received a final warning for poor work performance. The arbitrator found the dismissal to be unfair because these were not two like
offences.
Also, an employee might fail to carry out an instruction because:
The equipment used is really faulty
The employee truly does not have the required skill
The employee is genuinely disabled
These examples do not amount to insubordination because the employee is
not refusing to carry out the instruction.
To observe our experts debating hot labour law topics please go to
www.labourlawadvice.co.za and click on the Labour Law Debate item in the
main menu.
by K-Ci Henry | May 3, 2021 | Legal
According to section 213 of the LRA an employee is:
“(a) any person, excluding an independent contractor, who works for another person or for the state and who receives, or is entitled to receive, any remuneration; and (b) any other person who in any manner assists in carrying out or conducting the business of an employer…”
This definition strongly implies that the employer’s legal obligations begin only on the day that the employee physically begins work. However, this is not necessarily so. The courts have found that the employee is protected by labour law from the moment the employment contract is concluded even if the employee has not yet started work; and even if the contract has only been orally agreed.
For example, in the case of Wyeth SA (Pty) Ltd vs Manqele (People Dynamics, September 2003 page 39). Manqele was offered a position by the employer as a sales rep. The parties concluded a written contract of employment in terms of which he was to commence work on 1 April. Prior to Manqele beginning work, he was advised that the employer was no longer prepared to employ him. In terms of the contract of employment, Manqele had been entitled to a company vehicle.
The employer believed that Manqele had made a misrepresentation as to the status of the car he had chosen, and on this basis took the view that there was no contract, as the parties had not reached agreement as to the condition of the motor vehicle stipulated in the letter of appointment.
Manqele took the matter to the CCMA where the arbitrator ruled that Manqele had become an employee the moment he accepted Wyeth’s offer of employment. Wyeth took the arbitrator on review at the Labour Court on the
grounds that the arbitrator had arrived at an “unjustifiable conclusion in ruling on the definition of an employee”.
That is, Wyeth argued in the Labour Court that Manqele did not become an employee merely because of the employment contract. This argument is supported by an earlier Labour Court finding in the case of Whitehead vs
Woolworths (Pty) Ltd (1999 20 ILJ 2133). In that case the Court found, according to the report, that a person who is party to a contract of employment but who has not yet commenced employment is not an employee for the purposes of the LRA.
However, despite the Woolworths case finding the Court, in the Manqele case found that, as a party to a valid and binding contract of employment, Manqele was an employee for the purposes of the LRA.
The employer recently took the matter further to the Labour Appeal Court (In Wyeth SA (Pty) Ltd vs Manqele & others 2005, 6 BLLR 523) but lost yet again. The Court upheld the earlier decisions by the CCMA and Labour Court that Manqele had achieved legal employee status the moment his employment
contract was signed. This decision poses a number of concerns for employers.
– Firstly, the fact that two different benches of Labour Appeal Court judges (Woolworths on the one hand and Wyeth on the other) made two such diametrically opposed decisions on a matter as fundamental as this one
creates major uncertainty as regards the law.
– Secondly, employers are now clueless as to whether they are or are not entitled to cancel employment contracts prior to commencement of work.
– Thirdly, where the parties have agreed in principle that the employee will get the job it is now not clear whether a disagreement on the terms of the employment does or does not delay the legal validity of the contract of
employment.
In the light of these dangers employers should:
– Avoid entering into employment agreements until all the terms and conditions
have been dealt with thoroughly
– Ensure that, before offering anybody a job, there are no obstacles to allowing
the candidate to take up the position
– Make it clear that the discussion of the terms and conditions of a contract in
no way constitutes an offer of employment.
– Never employ, contract with or cancel the employment contract of any person
without involving a labour law expert experienced in dealing with these tricky issues.
To observe our experts debating controversial labour law topics please go to
www.labourlawadvice.co.za and click on the Labour Law Debate menu item.
