In an employer-employee relationship, both parties have certain duties towards one another. Employers have a duty, amongst others, to pay the employee’s remuneration. On the other hand, employees must obey their employer’s reasonable and lawful instructions.
Does this mean that an employer can immediately proceed with disciplinary steps once an employee refuses to follow a lawful and reasonable instruction?
Unfortunately, there is more than meets the eye in this regard.
There are two questions the employer needs to consider when this issue emerges:
- Is the instruction that is given lawful, in terms of legislation?
- Is the instruction reasonable if it falls outside the employees’ job description, or does it constitute a unilateral change in the terms and conditions of the contract of employment?
Firstly, the instruction given to an employee must be lawful. If the instruction is unlawful, dismissal will not be justified, as held in SA Municipal Workers Union on behalf of Nkomo vs City of Cape Town (2014) 35 ILJ 3519 (BCA), where the applicant employee was employed as a senior traffic officer. The applicant stopped a vehicle owned by M but driven by a third party. Neither of them was able to produce a valid driver’s license, so the applicant drove the vehicle to the traffic department, where the principal inspector instructed the applicant to release the vehicle to M. The applicant refused the instruction and argued that it would be unlawful as the driver was not in possession of a driver’s licence. The dismissal of the applicant was subsequently found unjustified.
Further examples of an unlawful instruction would be one where an employee is instructed to commit assault, lie under oath, steal etc. An employer must be very cautious when issuing an instruction that might be considered unlawful, as some dismissals may even constitute an automatic unfair dismissal in terms of Section 187(1) of the Labour Relations Act (LRA).
Section 5(2)(c)(iv) of the LRA is also relevant and provides the following:
“(2) Without limiting the general protection conferred by subsection (1), no person may do, or threaten to do, any of the following:
(c) prejudice an employee or a person seeking employment because of past, present, or anticipated…
(iv) failure or refusal to do something that an employer may not lawfully permit or require an employee to do”.
This brings us to the second question mentioned above. Will an instruction to an employee be reasonable if it is not specifically listed in his/her job description, or will the instruction constitute a unilateral change in the terms and conditions of the employment relationship?
Most employees are appointed in a specific position which contains a description of his/her duties. It is, however, difficult, almost impossible, to list and specify all the duties of an employee. It is at this point where an employee will usually refuse an instruction in defence that the type of work he/she is instructed to perform, is not contained in their job description and that it, therefore, constitutes a unilateral change in their terms and conditions of employment. This defence will, however, not always hold water.
In A Mauchie (Pty) Ltd t/a Precision Tools v NUMSA & others (1995) 16 ILJ 1 (LAC), the employees were normally operating one machine. Due to an urgent order, the employer instructed the employees to operate two other machines to dispose of the urgent order. The employees refused the instruction in that they were appointed to operate only one machine and that this instruction constitutes a unilateral change of the terms and conditions of their employment contracts.
The Court noted the following:
“On those facts, it was not a term of the contract of employment that the applicants would operate only one machine. A description of the work to be performed as that of “operator” should not, in my view, be construed inflexibly provided that the fundamental nature of the work be performed is not altered.” (Wallis Labour and Employment Law para 45 at 7-9). I agree with the view expressed by the learned author at 7-23 n 9 that employees do not have a vested right to preserve their working obligations completely unchanged from the moment when they first begin work. It is only if changes are so dramatic as to amount to a requirement that the employee undertakes an entirely different job that there is a right to refuse to do the job in the required manner.”
In addition to the above case, it was also stated in National Union of Metalworkers of SA on behalf of its Members v Lumex Clipsal (Pty) Ltd (2001) 22 IJL 714 (LC) that as long as the instruction given to perform work did not alter the nature of an employees’ work to such a degree that it was no longer work that the employees had agreed to perform under the terms of their contracts, it will constitute a reasonable instruction. In the contrary, if the nature of an employee’s work is changed to a large degree, it will amount to a unilateral change in terms and conditions of the employment contract.
The outcome of the Mauchie case was also confirmed in MISA and another v Silverton Spraypainters and Panelbeaters (Pty) Ltd and two others  ZALAC 42 (LAC) where it was held that when an instruction to perform work falls outside the employees’ job description but ancillary to it, the dismissal will be justified.
In this instance, some employers might find it difficult to determine which duties will be ancillary to the duties contained in an employee’s job description. To assist an employer, the arbitrator in SA Transport & Allied Workers Union v Auto Carriers (East London Branch) (2007) 28 ILJ 1672 (ARB) has set out very useful points a reasonable instruction depends on when it falls outside the employee’s job description, namely:
- The terms and/or conditions of the employee’s contract;
- The nature of the task to be performed;
- The circumstances in which the instruction is given; and
- The employer’s operational requirements.
With regards to the terms and/or conditions of the employee’s contract, it is therefore useful for the employer to go back to their contracts of employment. It is advisable to make provision for an additional clause in the contract of employment that states that an employee can also be given additional tasks that fall within the employee’s skills, experience, capability, etc., and is not restricted to the position he/she is appointed as in terms of his contract of employment.
The lawfulness of the instruction, together with the four (4) points listed above, must be thoroughly considered by an employer when an instruction to perform work is given to an employee.
It is advisable to contact your closest CEO office for assistance if you as an employer want to instruct an employee to perform work that falls outside his job descriptions.
Article by: Marteleen Lindemann
Dispute Resolution Official – Klerksdorp