By lvan lsraelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: email@example.com. Web Address: www.labourlawadvice.co.za.
There were nearly 90 strikes and other worker protests in South Africa during 2023. 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 by a single employee can result directly and indirectly in costly damage including:
- Discipline and lost employment for the employee.
- Damaged management-employee relationship.
- Trade unions being brought into the workplace.
- Reduced morale.
- A strained working atmosphere.
- Slowed production output by supporters of the ‘rebel’.
- Lack of teamwork and co-operation.
- Poor work performance.
- Unhappy clients.
- Loss of clients and/or loss of orders.
- 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, where it is shown that the employer had been unreasonable in its expectations of the employee, the result could be very different. Also, even if the employer has acted reasonably the reasons for the employee’s defiance must be considered carefully before the sanction of dismissal is imposed. In the case of Petersen vs Kost Engineering (Pty) Ltd) (2000, 9 BALR 1068) the employee was fired for refusing to work. His reason for this gross insubordination was that he was unhappy with his pay. The CCMA found in the employee’s favour due to mitigating circumstances one of which was that he had misconducted himself due to the fact that he believed the employer was not paying him a high enough salary.
Thus, while the law does not give employees the right to disobey instructions or to rebel unprocedurally in protest against employer actions the CCMA still found in the employee’s favour. Had it been 50 employees that rebelled this employer would have been in extremely serious trouble. This could mean disaster for the employer especially if the rebels are all reinstated because such reinstated rebels will feel untouchable and could become even more disruptive knowing that they are protected by the CCMA. Therefore, any decision to dismiss such employees should be informed by advice from a reputable labour law expert.
To access our experts debating thorny labour law topics please go to www.labourlawadvice.co.za and click on the Labour Law Debate icon in the main menu.