An employee refused to carry out an instruction from his superior due to his belief that such instruction was unlawful. The employee filed a statement of case in the Labour Court as he believed that he was discriminated against on the ground of his conscience. The Labour Court rejected and dismissed the employee’s request for default judgment against the employer, as the Court held that an instruction issued by a superior does not automatically constitute discrimination on the ground of conscience if the employee is of the opinion that the instruction is unlawful.

Maphanga v Department of Justice and Constitutional Development [2023] 6 BLLR 530 (LC)

Case summary

The employee, Maphanga, filed a statement of case in terms of the rules of the Labour Court. The employer, the Department of Justice and Constitutional Development, failed to issue a statement of response and, therefore, the employee sought default judgment against the employer.

In 2019, the employee’s superior issued him with a work instruction. The employee was of the opinion that such instruction was unlawful and he, therefore, refused to carry out the instruction. The employee contended that he was being harassed when threatened with disciplinary action by his superior. Believing that his moral sense of what is right or wrong was being attacked through actions of harassment, he lodged an internal grievance, which was not resolved to his satisfaction, after which he filed a claim in the Labour Court. The employee specifically claimed that he had been discriminated against on the ground of conscience.

The Labour Court held that the purpose of the Employment Equity Act No. 55 of 1998, as amended, (the “EEA”) is to eliminate unfair discrimination. Harassment of an employee is considered a form of unfair discrimination in terms of Section 6(3) of the EEA.

The Court held that harassment refers to someone behaving in a way that causes the person lodging the complaint to fear harm. Such harm can include mental, psychological, physical or economic harm. Based on this definition, the Court stated that it cannot be argued that a superior who issues work instructions is behaving in a manner that would cause the subordinate to fear harm.

Based on his own statement, Maphanga was not subjected to harassment, but rather his superior simply provided him with work instructions, as would be expected from a superior. Maphanga believed that he was discriminated against based on his personal beliefs. Conscience refers to an individual’s moral understanding of what is right or wrong. However, the Court did not consider an employee’s attitude towards work instructions as falling within the scope of conscience.

There is nothing derogatory about a superior issuing a work-related instruction, and emphasising that failure to comply with it would be seen as insolence or insubordination. Conscience should not be confused with abomination.

The Court emphasised that it is not automatically the case that when an employee defiantly rejects their employer’s authority, they can seek protection under the EEA. Rather, an employer is within their rights to dismiss an employee who challenges their authority or displays impudence. Therefore, the Court was not convinced that Maphanga had presented a case of unfair discrimination. His request for a default judgment against the employer was rejected and dismissed.

Issued by LabourGuide