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EMPLOYERS' INSTRUCTIONS MUST BE OBEYED

[Wednesday, July 25, 2012 12:46:58]

An employee’s duties must be set out in writing when the employee commences employment. It is advisable to do so in a written contract of employment. Many employees mistakenly believe that they are not bound by the employer’s instructions if there is no written contract of employment. The absence of a written contract does not invalidate the employment agreement. However, section 29 of the Basic Conditions of Employment of 1997 does require the employer to supply the employee, when the employee commences employment, with certain particulars in writing, such as: the full particulars of the employer; the name and occupation of the employee, or a brief description of the work for which the employee is employed; the date on which the employment began; the employee's ordinary hours of work and days of work; details of the employee’s remuneration and so on.

It is important to agree on the job description and the specific duties of an employee at the commencement of employment. It is common for employers to specify in the contract of employment or the job description that the employee may be required to perform further duties that are not specifically stated in the contract or the job description. The employee is obliged to perform such duties when required. However, some employers take unfair advantage of employees and unreasonably require the employee to perform duties which are either considered to be inferior or in excess of the employee’s normal responsibilities. Whether such additional tasks are considered to be reasonable or not, will depend on the circumstances of each case.

In a dispute reported in the April 2010 edition of the Industrial Law Journal (the “ILJ”), an Eastern Cape Commissioner of the Commission for Conciliation Mediation and Arbitration (the “CCMA”) issued an award dismissing the employee’s claim against her employer. In the said case, Nelson v Fieldswear (2010) 31 ILJ 1009 (CCMA), the employee referred an unfair labour practice dispute to the CCMA after she was issued with a final warning for refusing to perform certain duties as a “sample cutter” which was deemed to be a higher paid position than her position as a “layer cutter”. The employee had agreed in her contract of employment that “she may be required to perform functions in addition to those associated with her own position”.

In dismissing the employee’s claim that the final warning amounted to an unfair labour practice as provided by section 186(2)(b) of the Labour Relations Act (the “LRA”) the commissioner took into account that the employer had only started the business a year earlier and was dependent on the employees to do more than usual in order to assist the profitability of the business in times of economic difficulty.

Employees should take cognizance of the fact that they are bound to the terms and conditions of their employment contract and that refusal to obey the employer’s reasonable instructions may lead to disciplinary action and even, in severe cases, to dismissal.


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