A Mauchle (Pty) Ltd t/a Precision Tools v NUMSA & others (1995) 16 ILJ 349 (LAC)

Where a lawful and reasonable instruction is given, the refusal to obey in a serious, deliberate and repeated manner is a valid reason for dismissal.

Facts:

After extensive negotiations with the union failed to achieve agreement, the employer notified employees of a changed work practice and warned that disciplinary action would be taken if there was refusal to change. There was a collective refusal to change to the new work practice and the employer dismissed the employees for a concerted refusal to comply with a lawful and reasonable work instruction. The Industrial Court found that the employer had issued an unreasonable request (not instruction) which unilaterally altered the terms and conditions of employment. The dismissal was found to be unfair. On appeal to the Labour Appeal Court, it was held that an instruction (not request) had been issued, that it did not amount to extensive change in the work performed, and as the work change did not involve a term of employment, there was no legal or other reason for the employer to negotiate with the union on it. All that was required was an attempt to persuade the employees to cooperate and accept the change in practice. When that failed, the employer was entitled to issue the instruction. The court found that as the refusal to obey a lawful and reasonable instruction was serious, deliberate and repeated, there was a valid reason to dismiss the employees.

Extract from the judgment:

I agree... that 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 changes are so dramatic as to amount to a requirement that the employee undertakes an entirely different job that there is a right to refuse to do the job in the required manner...

As it was not a term of the contracts of employment that an operator was obliged to operate one machine only, there was no requirement in law or fairness for the company to negotiate with the union. What was required of the company, as a matter of fairness and sound industrial relations practice, was to attempt to persuade the applicants to cooperate and to accept the change in practice (of operating one machine). That is precisely what the company did... When that process failed, the company was entitled to issue the instruction: an instruction which was lawful and reasonable. The mere process of labelling the process as 'negotiations' did not change the real nature of the process.

The applicants collectively refused to obey the instruction. The company had a valid reason for dismissing the applicants: an instruction was in fact given; the instruction was lawful; the instruction was reasonable; the refusal to obey the instruction was serious, deliberate and repeated.