In the case of Bidvest Protea Coin (Pty) Ltd v South African Transport and Allied Workers Union and Others  (2023) 32 LAC 1.11.12 also reported at [2023] 3 BLLR 195 (LAC), the Employee was a security guard that was stationed at a casino. The Employee was instructed to escort a wanted man to an interview room, where the man was informed that there was a warrant issued for his arrest and that he needed to remain in the room until the police arrived.

The wanted man decided to leave, and the Employee followed him to his car without calling for any backup. The wanted man was able to escape before the police arrived. The Employee was dismissed for failing to comply with an instruction and for insubordination. During the Arbitration, the Employee stated that he was unaware he had the power to arrest the wanted man. The Commissioner ruled the dismissal was unfair as the Employer did not prove that the Employee had been given an instruction.

The Employer attempted to have the Arbitration Award set aside on review on the grounds that the Award was unreasonable and that the Commissioner had intervened in the proceedings to a degree which deterred the Employer from calling all its intended witnesses. However, the attempt to set the Award aside failed. The Court held that the Commissioner’s approach was not unfair or inappropriate. Both parties were afforded a fair hearing, and the Employer decided not to call its witness on its own accord. The Court went on to say that although the Employer was entitled to instruct the Employee to accompany the wanted man to the interview room, the Employee had no idea why he was doing so and was never instructed to arrest the wanted man. The wanted man, not being under arrest, was therefore entitled to leave. There was no evidence to show that the Employee was insubordinate, and it was held that the Commissioner’s finding that the dismissal was substantively unfair was reasonable.

Considering the above case, Employers must take caution and not hastily dismiss an Employee solely because the Employee did not follow a given instruction. The Employer must take into consideration the reasonableness of that instruction and whether they have evidence of giving the said instruction to the Employee.

Article by Raina Doorasamy

Dispute Resolution Official – Durban