BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on 011 888 7944 or 082 852 2973 or on e-mail address: [email protected].
Workplace rebellion can bring the company to its knees. The most typical form of rebellion known in South Africa is industrial action. Such rebellion can cripple the organisation especially if it lasts for several weeks and if the majority of employees take part. However, even smaller scale workplace rebellion or defiance can result in costly damage including:
- Discipline and lost employment for employees
- Damaged management-employee relationships
- Trade unions being brought into the workplace
- Reduced morale
- A strained working atmosphere
- Demotivation
- Slowed production output
- Lack of teamwork and co-operation
- Unhappy clients
- Loss of clients and/or loss of orders
- Retrenchments
- Material wastage
- Industrial sabotage
- Increased accidents and injuries
- Go slows
- Outright refusal to obey instructions
There are two basic reasons why employers need to avoid or at least quickly resolve such rebellions:
- Firstly, the above factors are likely to affect profitability.
- Secondly, rebellions have the habit of ending up in the CCMA or bargaining counsel. Neither of these are good places for employer to go. Fighting disputes at such tribunals is time wasting, energy sapping, emotionally draining and financially costly.
In the case of NUMSA obo Rewu vs Borbet SA (2008 3 BALR 237) the employee refused to perform quality inspection work because it did not fall within his job description. As a result he was dismissed. The arbitrator found that the work did fall within his job description and that his repeated refusal to do this work constituted defiance. The dismissal was therefore found to be fair. The employer won this case because it was able to show that the employee’s defiance was unjustified and that the employer had not done anything unreasonable to provoke the defiant act of Rewu.
However, defiance does not always merit dismissal. In the case of Mushi v Exxaro Coal (Pty) Ltd Grootegeluk Coal Mine [2019] 10 BLLR 1134 (LAC) the employee was dismissed for refusing his supervisor’s instruction to allow him to board a truck that the employee was manoeuvring. The employee was dismissed. The Labour Court on review found the dismissal to have been fair.
The Labour Appeal Court found that the employer’s disciplinary code provided for a final warning for insubordination. While it was okay to treat this only as a guideline, departures from such codes must be justified. The Commissioner had taken all relevant circumstances into account before determining that dismissal was too severe. The employee’s appeal was upheld with costs.
Thus, while the law does not give employees the right to disobey instructions or to defy the employer, decisions as to the sanction must be made rationally and not emotionally. Had it been 50 employees that rebelled and were reinstated with backpay this employer would have been in extremely serious trouble. This could mean disaster for the employer because such reinstated rebels will feel untouchable and could become even more disruptive knowing that they are protected by the courts. Therefore, any decision to dismiss such employees should be informed by advice from a reputable labour law expert.
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