The principle “obey now and grieve later” has been firmly established in our South African employment law. It requires employees to obey lawful and reasonable instructions from their superiors and to challenge any indiscretions after complying with the instruction. This principle took centre stage in the recent Labour Appeal Court (“LAC”) matter between the Department of Correctional Services v Kutu & Others.

The employee (“Kutu”) was employed as a correctional officer by the Department of Correctional Services (“DCS”), where his duties included escorting inmates to court and hospital facilities.  He was dismissed on 29 August 2019 following a disciplinary hearing on three charges of misconduct pertaining to his failure to carry out lawful instructions. Dissatisfied with his dismissal, Kutu referred an unfair dismissal dispute to the General Public Service Sectoral Bargaining Council.

The arbitrator found Kutu not guilty of charges 2 and 3, but found him guilty of charge 1, which read as follows “…fails to carry out a lawful order or routine instruction without just and reasonable cause. In that, on the 19 of July 2018 at about 11h00 at Atteridgeville Correctional Centre Mr Malungwana (unit manager) gave you a lawful and reasonable instruction to take the offender [inmate] Sibusiso Mthimkhulu 218625225 to Kalafong Hospital for medical treatment. You failed to carry out this lawful and reasonable instruction”.

Malungwana was called as a witness by DCS and testified that on 19 July 2018, he received a call from the prison clinic requesting an escort to take an inmate to Kalafong hospital. Malungwana went to the clinic to enquire about the situation, where a nurse advised him that the inmate had a kidney and bladder problem, and as a result, could not urinate. On his way out of the clinic, Malungwana came across Kutu and asked him to assist with escorting the inmate to hospital. However, Kutu refused, stating that as it was his birthday, he was going to knock off at noon.

Malungwana further testified that he was not convinced that it was Kutu’s birthday. To verify this, he went to the HR Department and discovered that Kutu was being dishonest as his birthday was, in fact, on 22 September. Malungwana confronted Kutu on these grounds, and Kutu claimed to have confused his birthday with that of his wife. Malungwana again requested Kutu to assist with escorting the inmate, but Kutu refused once again, stating that it was his lunchtime.

Kutu argued that he was not given a reasonable instruction to escort the inmate, alleging that Malungwana informed him that he was requesting assistance but did not specifically order him to escort the inmate. Kutu further testified that he was a victim of a conspiracy orchestrated by Mr Mkhwanazi, the head of the Correctional Centre, to dismiss him because he had changed trade unions – from The Police and Prisons Civil Rights Union (“POPCRU”) to Public Servants Association (“PSA”).

In support of the conspiracy theory, Kutu relied on witnesses who were part of PSA. These witnesses described a meeting with Mkhwanazi on 24 April 2018 to discuss a verbal warning given against Kutu for alleged insubordination. They testified that Mkhwanazi was not indulgent, as he was allegedly forced to act against Kutu since he had left POPCRU for PSA. The witnesses stated that management had advised that Mkhwanazi had issued a directive for Kutu to be allocated tasks to escort inmates to hospital and court, and that as a result, he could be charged with misconduct if he refused to do so. The DCS’s witnesses denied this conspiracy theory.

The arbitrator found that it was immaterial that Malungwana had used the word “assistance” instead of “ordered” when he issued the instruction, as it was Kutu’s duty to escort inmates. Therefore, the arbitrator found the dismissal to be appropriate in the circumstances, having considered the seriousness of the inmate’s medical condition.

Dissatisfied with the arbitration award, Kutu then lodged a review application to the Labour Court (“LC”) on several grounds. Firstly, he argued that the arbitrator failed to consider relevant evidence, particularly the evidence that showed that there was no instruction. Alternatively, even if there was an instruction, the motivation behind it was unreasonable. Secondly, Kutu contended that the arbitrator made an error of logic concerning the charge by ignoring the causal manner in which the instruction was given, as it gave the impression that he had the discretion to refuse. Lastly, Kutu contended that the arbitrator’s findings on the appropriateness of the sanction of dismissal was not supported by evidence.

The LC was of the view that Kutu’s testimony concerning the incident seemed condensed and lacking in certain respects, such as the issue relating to his birthday. The LC rejected the evidence relating to the conspiracy theory, stating that there was no evidence to support the allegations - “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”. Therefore, the LC upheld the guilty finding made by the arbitrator. However, it was not satisfied that Kutu’s conduct justified immediate dismissal, especially in a system that has restorative justice as one of its tenets.

The DCS appealed against the LC judgment, specifically regarding the sanction of dismissal, and Kutu then lodged a cross-appeal against the LC upholding the guilty verdict. The LAC concurred with the LC, stating that even if there was a conspiracy to dismiss Kutu, it could have been averted had he obeyed the reasonable and lawful instruction to escort the inmate to the hospital. Especially given that obedience is imperative and a crucial cornerstone in DCS as it is a fundamental enforcement institution.

The LAC agreed with the arbitrator’s finding, stating that it was reasonable that Kutu was found guilty of charge 1, and that the LC was correct in not interfering with it. The LAC further held that the LC appreciated the seriousness of Kutu’s defiance, not only in relation to the inmate who required emergency medical assistance but also in consideration of the potential future ramifications and concerns for the safety of other correctional officers, should such insubordination be tolerated. Thus, Kutu’s cross-appeal was dismissed for a lack of merit.

This case serves as a lesson to both employees and employers. It is a reminder to employees that insubordination will not be tolerated, and a reminder to employers that they must not tolerate insubordination. The 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 the challenge or defiance is deliberate and serious in nature.

Employees have a duty of good faith towards their employers, which includes obeying lawful and reasonable instructions from their employers. In a case where an employee is faced with a lawful and reasonable instruction from their employer, as well as a challenge against the employer, the employee must obey the instruction and grieve later.