Drafting employment contracts for ad hoc activities

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It often happens that employers give instructions to employees that do not form part of their usual routine. This article will briefly discuss whether employees are obliged to execute all instructions received from their employer or supervisor, even if it is not what the employee was employed to do.

As a point of departure, normally, an employee’s job description will be contained in their employment agreement. However, in practice, you often get scenarios where the employee does not have an employment agreement, or the employment agreement does not expressly provide for the “extra instruction”. In A Mauchle (Pty) Ltd t/a Precision Tools v NUMSA & others 1995 16 ILJ 349 (LAC) the employer informed the employees of a change in work practice and warned them that disciplinary action would follow should there be a refusal to accept the change. Accordingly, there was a collective refusal from the employees, which resulted in the employer dismissing employees who refused to comply with the lawful and reasonable work instruction. The court a quo held that the instruction was unreasonable, and it was a unilateral change in the terms and conditions of employment. However, on appeal, the Labour Appeal Court, found that the amendment of the conditions did not amount to an extensive change in work and that the change did not involve a term of employment. Accordingly, the court found that a refusal to obey a lawful and reasonable instruction amounts to a serious, deliberate form of insubordination and that it could be a valid reason for dismissal.

Therefore, it is possible that employers can instruct employees to perform duties that are not excessive to their normal working conditions.

It is also important to remember that, in modern times, employment agreements will intentionally be drafted to give employers the freedom to impose various instructions, apart from the “normal” instructions associated with the job description without any restrictions. The said clauses will typically read as follows: “the employee undertakes and will execute any alternative tasks as requested to do so, regardless of whether or not such work falls within the normal scope of the position as set out in this agreement” or “is subject to the provisions of this agreement and is further regulated by the conditions of service of the Employer, as amended from time to time as well as any other applicable labour legislation or regulation.”

Therefore, it can be expected of employees to comply with reasonable and lawful instructions received from their employer, even if it does not form part of their regular duties or job description contained in their employment agreement. Employees should carefully read through their employment agreement before addressing issues with executing instructions, otherwise, it can amount to insubordination.

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This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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