The Covid-19 era makes it essential that employers and employees work together to keep the company alive. Therefore, in the age of Corona, workplace rebellion can be the last nail in the coffin. The most typical form of rebellion known in South Africa is industrial action. Such rebellion can cripple the organisation especially if it is protracted 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
- Poor work performance
- 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
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.
In Mokhele / Sephaku Cement [2020] 2 BALR 158 (CCMA) the employee, who needed 5 days’ study leave took that leave without applying for it and did so in defiance of her superior’s instruction to apply for leave. The Commissioner found the dismissal to be unfair because the insubordination was not gross. The employee was reinstated with full retrospective effect.
In the light of the above case findings, any decision to dismiss rebellious employees should be informed by advice from a reputable labour law expert.
To attend our 24 November 2020 webinar on RETRENCHMENT AND THE COVID ENVIRONMENT please contact Ronni via ronni@labourlawadvice.co.za or on 0845217492.
