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Refusal of a reasonable instruction in the South African Labour Law Context

CASE NOTE - Motor Industry Staff Association and Another v Silverton Spraypainters and Panelbeaters (Pty) Ltd and Others

INTRODUCTION AND BACKGROUND FACTS

In Motor Industry Staff Association and Another v Silverton Spraypainters and Panelbeaters (Pty) Ltd and others, the court had to decide whether an instruction given to an employee, employed as an estimator, by his employer to go out an solicit work amounted to a unilateral change in conditions of employment and when the employee refused 3 times, whether the dismissal was fair.

In the aforementioned case the company, conducting business as a panel beating and spray-painting shop, advised all its employees that in the light of economic pressure, everyone had to put in extra effort promoting the business in an attempt to avoid possible retrenchment and to assist in ensuring the long term viability of the business. During January 2009, the director and sole owner of the company instructed Mr Van Jaarsveld, employed as an estimator, to ‘physically go to the office of the assessors and fleet companies in order to promote the business of the company and to procure work’. This included taking brochures to promote the company with him. He was to use the company vehicle and all associated expenses would be paid. Van Jaarsveld refused this instruction claiming that his job did not entail marketing as he was employed as an estimator. It was common cause that his job entailed the following:

1.	To quote on vehicle accident damages;

2.	To correspond with estimators;

3.	To assist in ordering and receiving parts and

4.	 To advise customers on progress of the repair of their vehicle and obtain pricing of parts.

On 10 March 2009, Van Jaarsveld was again given the same instruction. He then again refused and argued that marketing was not part of his job, that he had contacted assessors telephonically and that he was cautious of potential marketing related questions that he may have to answer and therefore possibly embarrass the company. The respondent felt that the refusal was unjustified in that as an experienced panel beater and estimator, Van Jaarsveld should be able to do the work and that in any event, should he experienced any difficulties, he could have reported this to his employer and asked for assistance. Following this refusal, the company issued Van Jaarsveld with a final warning for refusing to obey a lawful instruction. On 11 March 2009, Van Jaarsveld again refused the same instruction, siting the same reasons. He was then charged with the refusal to obey a reasonable instruction in that he refused to solicit work for the company, at company expense, for a third time. He was then briefly redeployed as a panel beater and subsequently suspended pending the outcome of a disciplinary hearing. The outcome of the disciplinary hearing was a recommendation that he be dismissed. The company sanctioned the dismissal recommendation. Van Jaarsveld's internal appeal against his dismissal was unsuccessful.

The Bargaining Council, Labour Court as well as the Labour Appeal Court upheld the dismissal and found it to be both procedurally and substantively fair.

KEY ISSUES

Unilateral Change in Conditions of Employment

Encapsulating the ruling of Ndlovu J, it is submitted that the ruling correctly reflected that the instruction given by the employer did not amount to a material change in conditions of employment. This ruling mirrored the arguments raised in the in the Mouchle matter. In this case employees were dismissed for refusing to operate two machines instead of one and the court observed that: A description of work to be performed as that of ‘operator’ should not … ‘be construed inflexibility provided that the fundamental nature of the work to be performed is not altered’ … Employees do not have a vested right to preserve their working obligations completely unchanged as from the moment when they first begin work. It is only if the changes are so dramatic that the employee undertakes an entirely different job that there is a right to refuse to do the job in the required manner.

Although there was no specific guidelines set in what determines a change in conditions, the general term ‘dramatic change’ or ‘fundamental terms’ were used. It is generally accepted that the common law principle in employment contracts normally only allows for variation by agreement. Despite this, Grogan contextualises this boundary by his comment that: Conversely, an employer cannot unilaterally alter the terms or conditions of a current employment contract, even if the changes to the employee’s advantage. However, this does not mean that the relationship between the parties is frozen in a contractual straitjacket; an employer may change working practices, provided that such changes do not alter the employee’s contractual rights.

In the case under discussion, the arbitrator’s finding convinced the courts that, despite some technicalities around contradiction by the arbitrators language in his analysis of the evidence before him, that the instruction given to Mr Van Jaarsveld to do marketing was not, looking at all the facts before him in totality, a change in terms and conditions. This judgement would probably not have made it all the way to the LAC if the employer had simply included a clause in the contract of Van Jaarsveld that would allow the employer to request tasks from the employee that would not ordinarily form part of his normal duties. Van Jaarsveld in this case unfortunately had no written contract of employment and therefore the courts had to decide whether the additional tasks given to him was a change in his terms and conditions of employment.

A criticism in this case however is that much of the judgement centred on the argument that the additional task did not amount to unilateral changes in the conditions of employment of Van Jaarsveld’s contract based on his skill that he possessed, that it fell within his job ambit and that the employer would provide the ‘tools’ for him to do the work. A narrow following of this viewpoint could provide for an argument that the more skilled an employee is and the more senior the position is, coupled with the tools to do the work, the more power the employer potentially have in moulding the boundaries to include certain tasks. The opposite could therefore also be argued in that the more defined the employee’s tasks are the more scope there is for them to argue that the tasks would fall outside of the contract. Relevant to this topic is to take note that under the Labour Relations Act, employees can embark on protected strike action to compel the employer to restore their former conditions and compel their employer to restore the changes for 30 days. This however is provided that the aforementioned test fails. Also relevant is that if an employer wants to make changes to the conditions of employment as a result of its operational requirements and employees refuse to accept, the employer can use the mechanism of Section 189 of the LRA. This argument supported by the Mazitsa case was one of the main arguments that the applicant sited in the review application. Whilst the LAC acknowledged this principle it argued that more importantly the Sidumo test should be used in determining whether the arbitrator came to a decision that a reasonable arbitrator could not have made and therefore concluded that the Court a quo correctly dealt with the matter in that it found that the arbitrator gave comprehensive reasons as to why they believed that the instruction was reasonable and was not a material change in the conditions of employment of Van Jaarsveld, therefore found that the test for review failed.

GROSS INSUBORDINATION AND DISMISSAL Insubordination is defined as the refusal to obey a reasonable instruction. The courts however made some distinction between insubordination and gross insubordination. Gross insubordination would entail serious, persistent and deliberate conduct. Schedule 8(3) regard gross insubordination as serious misconduct that could warrant a dismissal. Van Jaarsveld persistently and publicly refused to obey the instruction; it therefore fell straight into this net with no surprise that the court felt the same. The LAC followed a similar approach as per the Slagment judgement. In this case the court found that the persistent refusal to obey a reasonable instruction sets the employee on a collision course with the employer resulting in rendering the employment relationship intolerable. Council for Van Jaarsveld also agued in the review application that the fact that the company redeployed him after the disciplinary enquiry, was indicative that the trust relationship was still in tact. Interestingly the LAC ruled that this argument was not sufficient. PROCEDURAL FAIRNESS The LAC disagreed with the argument that the LC used in determining that the dismissal was procedurally fair, despite coming to the same ruling. The LC based its decision on the principles of the Elizabeth Home case and observed that the LRA itself was silent on the content of any right to procedural fairness and simply required that a dismissal be affected in accordance with a fair procedure. The nature and extent is spelt out in terms of Schedule 8(4) of the LRA. In this case, the LAC however argued that despite the fact that the LRA provide no right to an internal appeal process that once an employer provides for such procedure it should nevertheless be fair. The argument by the appellant that Mr Van Rooyen, a college of Mr Joubert who chaired the disciplinary hearing, signed the dismissal notice as well as dealt with the internal appeal hearing and therefore creating potential bias, was not enough to convince the court that the procedure was unfair. The court took into account the fact that the arbitration proceedings would in any event have been a de novo hearing. The court therefore ruled that the dismissal was procedurally fair.

CONCLUSION It seems that the authority set by the court in this case significantly strengthened employers’ rights when it comes to cases where the employer want to add tasks that is not normally part of an employee’s contract. This however will always be subject to the test as to whether those tasks would be seen as falling completely outside of the employee’s job ambit, in which case the provisions of Section 189 of the LRA should be followed.