Think twice before talking back to your boss in South Africa

South African employees are advised to follow lawful instructions from their superiors and address any issues afterwards, as failing to do so may lead to being fired.

This was the message from Hope Mboweni, an associate at Shepstone & Wylie Attorneys, who noted this lesson in a recent court case. 

Mboweni used a recent Labour Appeal Court case between the Department of Correctional Services and an employee, Kutu, to illustrate this point. 

Kutu, a correctional officer responsible for escorting inmates to hospital and court facilities, was fired after refusing direct instruction from his manager to escort an inmate in need of urgent medical care.

The court heard that Kutu’s manager, Mr Malungwana, received a call from the prison clinic asking for an inmate to be escorted to Kalafong Hospital. 

After speaking with a nurse about the inmate’s serious kidney and bladder condition, Malungwana instructed Kutu to assist the inmate. 

However, Kutu refused, claiming he was leaving early because it was his birthday. However, Malungwana checked with the HR department and found that Kutu’s actual birthday was two months later. 

When confronted, Kutu changed his story, saying he had confused his birthday with his wife’s. Despite being asked again to assist, Kutu again refused, saying it was his lunchtime.

Kutu later argued that he was not directly ordered to escort the inmate but instead asked for assistance. 

He alleged that he was the victim of a conspiracy to dismiss him because he had changed trade unions. 

However, as Mboweni explained, the arbitrator found that whether the word “assist” or “order” was used was immaterial, as Kutu’s job duties clearly included escorting inmates. 

“Employees have a duty of good faith towards their employers, which includes obeying lawful and reasonable instructions,” Mboweni said.

The arbitrator ruled that Kutu’s dismissal was appropriate, given the seriousness of the inmate’s condition and the deliberate nature of his refusal.

The lesson to both employees and employers

Kutu took the case to the Labour Court, challenging the decision on several grounds, including claims that the instruction was not reasonable and that the sanction of dismissal was too harsh. 

However, the court found that Kutu’s version of events lacked detail and rejected his conspiracy claims outright. 

“If there were certain employees of the third respondent who may have conspired to get rid of the applicant, their plan could have failed had the applicant elected to comply with lawful instruction,” the court said.

While the court agreed that Kutu was guilty of misconduct, immediate dismissal might have been too harsh under the circumstances, given the principle of restorative justice in the correctional system. 

However, when the matter reached the Labour Appeal Court, the importance of obeying instructions in an enforcement institution like Correctional Services was emphasised. 

The appeal court agreed that Kutu’s defiance was serious, not only because it jeopardised the health of the inmate needing urgent care but also because tolerating such insubordination could endanger the safety of other officers in future.

The appeal court upheld the guilty finding and dismissed Kutu’s cross-appeal, finding that he had no valid excuse for his conduct. 

According to Mboweni, this case reminds employees that insubordination can justifiably lead to dismissal when the defiance is deliberate and serious.

“This case serves as a lesson to both employees and employers,” Mboweni said. “It reminds employees that insubordination will not be tolerated.”

Mboweni stressed that employees must comply first and raise complaints later. “In a case where an employee is faced with a lawful and reasonable instruction from their employer, the employee must obey the instruction and grieve later,” he said.