South Africa: Dealing With A Failure To Comply With Simple Instructions – The Naicker Case

Last Updated: 22 November 2019
Article by Petrus Khumalo

It is every employer's wish to build and maintain a great, enjoyable and productive work relationship the employees. Due to different personalities, positions, abilities and competencies which are intrinsic to the workplace, employers are usually faced with lots of challenges in managing the relationships between employer-employee or employee-employee. One of these challenges is caused by employees' simple duty to comply with a reasonable and lawful instruction. The case of Prabashnie Naicker v Africa Flight Services illustrates how a simple instruction may constitute insubordination.

Prabashnie Naicker v Africa Flight Services

In this case, the Applicant had been employed by Africa Flight Services as a Customer Service Agent, from 11 March 2013 until 24 November 2016 when she was dismissed. During the 3 November 2016, her superior sent her an email informing her that she should refrain from issuing incorrect charges in instances where she did not possess sufficient information to formulate correct charges. On the same day, the Applicant forwarded four pricing information to different entities without copying her superior in the email.

During a meeting held on 7 November 2016, the Applicant was instructed by her superior to copy her in all her emails sent to customers. The Applicant subsequently to her superior's instructions, did copy her in some emails but failed to so in others which is a blatant disregard of instructions after she agreed in writing that she would comply with the instructions.

The Applicant continued not to comply with the instructions, which resulted in her being notified of charges against her. A disciplinary hearing was held on 21 November 2016, of which she pleaded guilty to the charge of insubordination.

In terms of NUPSAW on behalf of Mani and others v National Lotteries Board, it was held that "a simple disregard of an employer's authority or of an employer's lawful, and reasonable instruction would constitute insubordination." Considering that instructions given to the Applicant was lawful and reasonable, she failed to comply with it several times.

Furthermore, it is highly improbable that she mistakenly omitted to copy her superior in her emails or she was under heavy workload as it takes a mere two seconds to copy someone. At the arbitration, the Applicant specifically mentioned that she had no confidence in the abilities and competencies of her superior.

In the Review Application at the Labour Court, the Applicant's argument was that the Commissioner committed an irregularity in the proceedings by failing to take into consideration that her conduct did not constitute insubordination, as she lacked the prerequisite intention to consciously disobey the instruction from her superior. To that end, the principal submissions are that the Commissioner failed to take into account, or ignored or failed to properly assess the material before her, and thus arrived at an outcome that does not fall within a band of reasonableness

A failure of an employee to comply with a reasonable and lawful instruction of an employer or an employee's challenge to or defiance of the authority of the employer may justify a dismissal, provided that it is wilful and serious.

The Court held that the Applicant cannot use a defence of an honest mistake to justify her failure to copy her superior on more than 6 occasions. Furthermore, the Applicant put it in writing at a meeting that would comply with the instruction, however, she failed to do. Therefore, her failure to do so was persistent and over prolonged periods.

It was then evident that she could not comply with a reasonable instruction and could not understand the negative impact that inaccurate pricing charges may have on the relationship between her employer and its customers. At the arbitration, she specifically mentioned that she had no confidence in the abilities and competencies of her superior. Therefore, her disobedience resulted in the employment relations being intolerable.

Conclusion

This case serves as a reminder to employees that they should comply with reasonable and lawful instructions of employers. Employees should also be mindful of their duties towards the employer, including complying with simple instructions. In many circumstances, employees are not aware that simple instructions such as this illustrated in this article over a prolonged period may constitute insubordination. As much as the employers have a duty to give instructions to their employees, employees also have a duty towards the employer to comply with those instructions regardless if they are simple or not.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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