There is a disturbing trend that seems to be raising its head in workplaces these days – employees who are called to meetings by their managers (or HR) and then simply….. well…… refuse to attend. Or demanding a detailed agenda for the meeting before considering whether to attend. Or objecting to other attendees to the meeting. Or…….
Not to put too fine a point on it, but this would typically be justified by some perceived infringement of their rights, should they attend said meeting – and hence pre-empting and avoiding the expected unfair treatment by not attending. This especially happens when the subject matter pertains to matters about the employee personally – such as performance or conduct issues.
A recent example of such a scenario was the matter of Gold One Limited v Madalani and Others (JR 1109/15) [2020] ZALCJHB 180 (9 September 2020), where the employee went so far as to resign and claim constructive dismissal, simply because she had been called to attend a meeting that she believed would ‘tamper with her terms and conditions of employment and was intended as a smokescreen to achieve her termination by way of intimidation'. Despite the fact that the company had conceded to her request to make the meeting a formal, recorded one as opposed to an informal meeting, she simply refused to be engaged on the conduct issues that the employer wished to discuss with her, threatened legal action and bailed out.
The Labour Court found that she had not been constructively dismissed and made it clear that for such a claim to succeed, the conduct of the employer toward the employee must be such that, viewed objectively, the employee could not reasonably be expected to cope with it. The court said that “(I)ntolerability is a high threshold, far more than just a difficult, unpleasant or stressful working environment or employment conditions, or for that matter an obnoxious, rude and uncompromising superior who may treat employees badly. Put otherwise, intolerability entails an unendurable or agonising circumstance marked by the conduct of the employer that must have brought the employee’s tolerance to a breaking point.” The employee in this case had “failed to show that the employer was to blame for making her continued employment intolerable. In this context, it does not avail ‘an employee to unjustifiably claim constructive dismissal where such an employee has suitable available alternative remedies or mechanisms to resolve the cause of the intolerability, before resorting to a resignation’.”
In Legal Aid South Africa v Mayisela and Others [2019] 5 BLLR 421 (LAC), the Labour Appeal Court confirmed that it was not up to an employee to determine how management should conduct performance assessments or processes, as this falls within management’s prerogative. The employee in this case had received a low performance score in his performance assessment. He challenged this, but refused to set up a teleconference call to discuss his performance and said that he wanted an explanation for his score in writing so that he could use this for his grievance. He went on to state ‘I don’t feel safe in my work anymore as an African manager’ and ‘I honestly think that Africans are being vilified … under the coded name of poor performance’. He made various allegations that he was being harassed because he was called to a meeting, but it was found that the manager’s requests were reasonable and within her discretion to determine and insist on a meeting with her subordinate, and did not constitute harassment. He had also accused his superior of conducting a witch hunt and had screamed and shouted at her, attacked her character and accused her of racism. The employee was eventually dismissed for insubordination and false allegations of racism.
In the cases below, similar situations have led to the employees being disciplined and even dismissed for insubordination:
In Naicker v Commission for Conciliation Mediation and Arbitration and Others (JR843/17) [2019] ZALCJHB 116 the employee had questioned her superior’s knowledge and experience to issue her with instructions, she had openly questioned her abilities and competencies, and contended that copying emails to her was not a priority when she was under pressure. The Labour Court drew an inference that the employee disrespected and challenged the superior’s authority and found that this would amount to gross insubordination.
In TMT Services and Supplies (Pty) Ltd v CCMA and 2 Others [JA32/2017] the Labour Appeal Court held that the foundation of the employer and employee relationship is premised on the employer’s instructions being followed by the employee and that it is intolerable that an employer is forced to engage in negotiations regarding day to day organisational arrangements with employees. In this case, the instruction issued was for the employee to attend a meeting the following day in order to discuss her poor performance. The employee sought to have the meeting postponed by sending a message stating that she was uncomfortable about the presence of another employee at the meeting, that no formal notice had been given to her to attend the meeting and that she had not been provided with an agenda for the meeting. The postponement was refused and the employee failed to attend the meeting. The court held that the employer’s managerial prerogative to issue instructions to its employees is a principle that is protected by the misconduct known as insubordination. This principle ensures that the operational requirements of the organisation are not weakened by insubordination on the part of employees. It further stated that the effect of the employee’s refusal to attend the meeting was to undermine the working relationship with her manager.
In Palluci Home Depot (Pty) Ltd v Herskowitz and Others [2015] 5 BLLR 484 (LAC) the LAC stated that insubordination also included disrespectful conduct of an employee that poses a deliberate (wilful) and serious challenge to the employer's authority.
Perhaps the misconception of employees – and quite often their advisors as well - is based on this: there is a balancing of rights in the workplace. As much as an employee may have individual expectations or perceptions regarding their job and what ‘fair treatment’ would constitute, the employer also has rights – i.e. the right to expect employees to capably and efficiently perform to work they have been employed to do. This is based on the need for operational efficiency. The hierarchy of authority in the workplace is such that addressing the performance and conduct of their subordinates is part of a manager’s job. While it must be fair, it cannot just be friendly requests, coaxing, and hoping for the best – it has to be based in reality and aligned with operational demands.
A manager is therefore entitled to both demand efficient and acceptable service from a subordinate, and to take action when this is not the case. There are also many other justified reasons for managers to schedule meetings and to expect their subordinates to attend these.
It is not up to the employee to insist on a negotiation in this regard before deciding whether or not to attend the meeting. I am not for a moment saying that employers who take advantage of employees and treat them abominably, do not exist - however, our labour law makes ample provision for employees to declare disputes if they believe that they have been treated unfairly and to provide proof to this effect. But to pre-empt potential perceived unfairness by refusing to engage with the employer, is not the way to go – so think carefully, even if your lawyer, consultant or union advises you to follow this approach.
© Judith Griessel
April 2020
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