‘When will they ever learn’.   These words are from the famous song Where have all the flowers gone? composed by Peter Seeger and sung by Peter, Paul and Mary during the Vietnam war.   As a result of the latest unanimous decision of the Labour Appeal Court (LAC) the same question could be asked of some of the hard-won rights of employees.   The issue concerned the prerogative of management to change conditions of employment.   A panel-beater/estimator was summarily fired for refusing to obey an instruction to go on the road and solicit business for the failing enterprise.   These are the hardly believable words of the LAC in para [43]:

“His blatant, persistent and public refusal to comply with this lawful and reasonable instruction constituted gross insubordination on his part.   He seriously and inexcusably undermined the authority of management.   In my view, he was correctly convicted of the misconduct as charged and his dismissal was, therefore, substantively fair”.

Different ‘skill sets’ are required to solicit business as opposed to a hands-on panel beater and even an estimator.   It is not difficult to measure the differences to determine if there will be a material change to the employee’s job.   Employers must either consult and agree on the changes or use the statutory procedures in section 189 of the LRA.   They have to ‘contemplate’ dismissing the employee for operational reasons but in the joint consensus-seeking process offer the job of ‘soliciting business’ as an alternative.   Failure to accept the alternative will probably allow the employer to dismiss and withhold severance pay but not notice pay.   Any unreasonable refusal to accept an alternative job means that the employee forfeits the right to severance pay ito of the BCEA.

It is respectfully submitted that the employer’s instruction to solicit business should not have been regarded as a reasonable and lawful instruction because it meant changing  material conditions of his employment.   As such the employee was entitled to refuse to ‘obey’ the unlawful and unreasonable instruction.   In fact it was the employer who materially breached the employment contract by summarily terminating it without any notice.   It seems that the employee would be entitled to institute proceeding in the Labour Court for a wrongful breach of contract or unlawful repudiation of the contract and claim specific performance or damages.   After all employees do have two separate claims (causes of action) in such circumstances.   That is why employers should always pay notice pay to ensure the dismissal is not wrongful nor unlawful.

In addition it is also unbelievable that judges, including those in the LAC, continue to use language that should be reserved for criminal matters.   It is highly undesirable and unhelpful for anyone, let alone Labour Court judges, to suggest, allow or condone the behaviour of employers who ‘charge’ employees, find them ‘guilty’ and then ‘convict’ them of transgressions such as insubordination.   If there is any suggestion of criminal behaviour it should be reported to the police.   Otherwise stick to the language of the LRA and inform the employee of the factual allegations and allow the employee to respond (the right to be heard).   Employers have the right to dismiss lawfully and fairly and this decision should not be regarded as a ‘sanction’ as it connotes a superior status for employers which they do not enjoy.

The case is MISA obo van Jaarsveld v Silverton Spraypainters & Panelbeaters (Pty) Ltd  case JA5/11 heard on 13 March and judgment delivered on 31 December 2012 by Ndlovu JA with  Waglay DJP and Murphy AJA concurring.   The summary dismissal was upheld by the arbitrator, the Labour Court and then by the LAC.

In para [31] the following is stated:

It is trite that an employee is guilty of insubordination if the employee concerned wilfully refuses to comply with a lawful and reasonable instruction issued by the employer.   It is also well settled that where the insubordination was gross, in that it was persistent, deliberate and public, a sanction of dismissal would normally be justified.   Mr van Jaarsveld was charged and convicted of misconduct involving insubordination, as a result of which he was dismissed from the company’s employ.   The case for Mr van Jaarsveld is that he was not guilty of misconduct, in the first place, because he was entitled to refuse to obey an unlawful and unreasonable instruction given to him by the company, on the basis that the instruction constituted an impermissible unilateral change to his terms and conditions of employment as an estimator.

Further extracts with footnotes omitted

[39] I am satisfied that the instruction for Mr van Jaarsveld to physically go out and solicit work from assessors and fleet companies during an economically threatening period, was simply something that could be inferred from, or at most, which was ancillary to, his normal duties.   Put differently, it was simply a variation in his work practice or a change in the manner his job was to be performed -a situation that was occasioned by sound and compelling operational reasons on the part of the company.   Previously, the company waited for clients to knock on the door to bring the work; but this was no longer happening.   So, the company came up with the idea that ‘Look, instead of waiting for clients to come to us, let’s go out and solicit work from them.’   It was fundamentally the same job which was then to be performed in a slightly different manner.   Indeed, it was, in my view, the situation in respect of which Mr van Jaarsveld did not have a vested right to preserve his working obligations completely unchanged as from the moment when he first began to work.

[40] It also seems to me that, in the present context, the term ‘marketing’ was simply bandied about and loosely used in a manner which, in my view, did not actually entail the change in the work practice which the company had envisaged.   On the facts, this scenario was not meant to refer to the formal business marketing profession.   As I have said, it only entailed solicitation of work which Mr van Jaarsveld was, after all, involved with.   It clearly did not require of him to have had some special training ‘in marketing’ in order to be able to perform the job.   In my view, the employer had the right to effect these changes in the work practice in order to adapt to the changing economic environment that was adversely affecting the operational requirements of the company.   Therefore, a denial of flexibility in the interpretation of the terms and conditions of Mr van Jaarsveld’s unwritten employment contract would be unreasonable and absurd, as it would have the effect of frustrating the company’s efforts towards its economic revival, an objective that was in the interest of both the company and all its employees, including Mr van Jaarsveld.

[41] It is also significant to note that Mr van Jaarsveld was to be provided with the company car which he would use when going out to solicit work and that any incidental expenses in relation to his field duties would be paid by the company.   Further, it was common cause that his position as an office-bound estimator, in terms of his listed duties, was no longer occupying him full-time at the time the instruction was issued.   Therefore, instead of engaging him in terms of section 189 of the LRA, with a view to possible retrenchment, the company resorted to a pragmatic, reasonable and practicable solution that was intended to, and indeed would, benefit everyone involved with the company.   In my view, it was within the company’s legitimate power to resort to this method in its own interest and that of its employees, including Mr van Jaarsveld.   In any event, it was not the appellant’s complaint in the Court a quo that the company should have resorted to section 189 consultation procedure.   This issue was never raised by the appellants in both their founding and supplementary affidavits filed for the review application.   It is, therefore, not open to the appellants to raise the issue at this stage.