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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on 'Dismissal for refusing to follow instructions' following three recent judgments on this topic, two of which come from the Labour Appeal Court. We also discuss three new cases: The first case looks at a Constitutional Court decision on the controversial issue of 'common purpose'. The second case asks whether a lock-out can be used to force the change of a collective agreement. The third case considers the employer's right to discipline employees who give dishonest evidence in hearings or arbitrations.


The Constitutional Court rules on proving 'common purpose' in strike violence

The doctrine of 'common purpose' is controversial because it draws conclusions about employees' intentions from their association with other employees, thereby making them liable for misconduct - eg for violence during a strike. Should your association with others be enough to establish your common purpose with them? If you are present as part of a crowd whilst someone is assaulted and you do nothing to stop it, should you also be found guilty of assault?

The Constitutional Court recently qualified the previous understanding of common purpose in Numsa obo Aubrey Dhludhlu and 147 Others v Marley Pipe Systems (SA) (Pty) Ltd (CCT 233/21) [2022] ZACC 30; (2022) 43 ILJ 2269 (CC) (22 August 2022). The LAC had relied on evidence that striking employees celebrated the vicious assault of an HR manager by a smaller group of employees, and thereby associated themselves with the assault. The Concourt qualified this approach and formulated a number of principles, including that for 'common purpose' to apply, evidence is required that individual employees associated with the violence: there is no obligation to dissociate from violence that one has not participated in, and failure to give an explanation does not equate to complicity.

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Lock-out to force change of a collective agreement?

What are the options for an employer which has agreed to wage increases in a collective agreement but subsequently cannot afford to pay those increases? If there is no agreement to waive the increases, can the employer use a lock-out to force agreement?

In Southern Sun Hotels Interests (PTY) LTD v South African Commercial Catering and Allied Workers Union (JA136/2021) [2022] ZALAC 120 (15 November 2022) the LAC confirmed that the overarching objective of s 65(3)(a)(i) of the LRA is to ensure that where parties are bound by the terms of a collective agreement, they may not for the period of its operation resort to industrial action in order to either roll back gains made through collective bargaining or seek greater rights than those originally agreed upon.

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Dishonesty in giving evidence

It is accepted that employees who present evidence at disciplinary/arbitration hearings have a responsibility to present truthful testimony. But what is the dividing line between dishonest evidence and evidence which is based on opinion and is not impartial?

This issue arose in Buscor (PTY) Ltd v Ntimbana and Others (JA104/2021) [2022] ZALAC 121 (29 November 2022) where the commissioner had commented in the award that the employees' testimony had "some integrity problems". The court held that in the absence of the record of evidence from the arbitration, a reviewing court may not conclude only on the basis of the award that witnesses have been dishonest. The LAC also said the fact that employees do not succeed in an arbitration does not automatically render their testimony as being untruthful or dishonest.

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ARTICLE : Dismissal for refusing to follow instructions, insubordination and insolence By Prof Alan Rycroft

Three recent court judgments have dealt with different aspects of a refusal to obey instructions. One of the basic understandings of the law governing the employment relationship is that the employee undertakes to obey reasonable and lawful instructions, to further the employer's business interests and to behave in a way that is respectful of the employer's authority.

Much of our case law historically comes from the master / servant era, where the mere questioning of the employer's instructions was regarded as insolence. Today there is scope for greater dialogue, comment, debate and criticism. Nevertheless, our law recognises that, depending on the circumstances of each case, a line can be crossed where the employee's words, attitude and actions constitute a rejection of the employer and its instructions, threatening the on-going working relationship.

Insubordination and insolence are two charges which are still frequently used (and confused) by employers when the employee has answered back, often emotionally, in a way that is seen as defiant and disrespectful. But there is now an awareness that an employee's apparent insubordination must be seen in its context.

In his article Prof Rycroft discusses 3 new cases dealing with dismissals for refusing to follow instructions. He highlights when this may constitute insubordination or insolence, what the difference is between these terms, and suggests wording for misconduct charges relating to these types of offences.

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Bruce Robertson
January 2023
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