Contracts of Employment

André Claassen


On a fairly regular basis, inquiries are received from the employers regarding the issue of whether or not an employee is obliged to carry out tasks or duties which are not stipulated in his job description.

Employers find that usually when issuing such an instruction to an employee, it is met with the retort " it is not in my job description." Thus the question arises - should job descriptions then preferably to be made intentionally general to try and avoid this type of problem arising?


This question was addressed as recently as last month, in a private arbitration in East London, in the matter of SATAWU / Auto Carriers (East London branch) [2—7] 5 BALR 493 9P). The respondent was engaged in the business of transporting new motor vehicles from that motor vehicle manufacturing plants to motor dealerships. The transportation was done by means of specially constructed " double decker" heavy-duty vehicles, on which the new motor cars were parked and secured on the trailer, and this rig, carrying perhaps 10 or more motor cars, was driven by a "carrier driver" from the factory to the dealership.


In other cases, the new motor cars were driven on their own wheels to the dealership by " convoy drivers." The dispute arose where there were no " carriers" to be driven, and the carrier drivers were requested to act as convoy drivers. The carrier drivers refused, and were supported by SATAWU in this refusal, who contended that the carrier drivers duties were restricted to loading and driving the carrier rigs.


The respondent maintained that such an instruction (to act as convoy drivers) was reasonable and lawful, and that the carrier drivers had no right to refuse on the grounds that it was not stated in the job description. The question that the arbitrator was requested to decide was " whether, under all circumstances, it is reasonable to instruct carrier drivers to do convoy work when their carriers are not available."


The arbitrator stated that the answer to this question - whether an employer may instruct an employee to perform tasks allegedly falling outside of his job description depends on :

[a] the terms and/or conditions of the employee's contract,

[b] the nature of the task to be performed,

[c] the circumstances in which the instruction is given, and

[d] the employer's operational requirements.
 

The union relied on a document which listed the duties and tasks of the carrier driver - and acting as a convoy driver was not listed among these tasks. To cut a long story short, the respondent stated that this list of duties was compiled during a job grading exercise, and was intended for use only as a guide for determining appropriate wage rates for each job description, and that it was never intended to constitute a comprehensive and exhaustive job description.


The union challenged the respondent to produce the minutes of the relevant meeting of the job grading committee, but apart from that they called no witnesses to refute his evidence in this regard. The arbitrator accepted the version of the respondent, stating that the document lacked contractual force.


Furthermore, in the bundle of documents submitted, the arbitrator found evidence that in the past, carrier drivers head customarily been requested to perform convoy work, and that they had, in fact, done so. The arbitrator pointed out that in A Mauchie (Pty) Ltd t/a Predcision Tools v NUMSA & others (1995) 16 ILJ 1 (LAC),


the Labour Appeal Court found that " employees do not have a vested the right to preserve their working obligations completely unchanged" from the moment they are appointed. The arbitrator then referred to the Employee Handbook, issued by the employer to all employees.


This Handbook stated that " employees shall obey the legitimate instruction of the supervision of any employee in authority over them, " and also " should a grievance be felt with regard to the instruction, representation may be made to supervision or higher authority, but in the first instance the instruction shall be obeyed."


Thus it was clear that employees did have a very specific procedure to follow in such instances - and no excuse could be accepted in the instance of a blank refusal to carry out the instruction. There was a clear procedure to be followed in cases of dissatisfaction with any instruction issued.


The arbitrator could not find any evidence to show that the instruction was unreasonable in any way. Finally, the arbitrator found that the employer is entitled to instruct carrier workers to drive new vehicles when they are unable to perform their normal duties when their carrier vehicles are not available, and that the carrier drivers are obliged to do this when instructed to do so, and lastly that the carrier drivers were not entitled to refuse to carry out such an instruction on the grounds that it was not stated in the job description.


Having regard to the 4 items to be considered (stated above), employers would be wise to ensure that a job description should state specifically that the list of tasks or duties and responsibilities is not exhaustive, and that the employer is entitled to instruct the employee at any time to carry out additional duties or responsibilities, which fall reasonably within the ambit of the job description, or in accordance with operational requirements.


Furthermore, it would seem prudent to include a clause such as "should a grievance be felt with regard to any instruction issued, representation may be made to supervision or higher authority by means of the grievance procedure, but in the first instance the instruction shall be obeyed."


Employees should realise that, as mentioned in A Mauchie (Pty) Ltd t/a Predcision Tools v NUMSA & others (1995) 16 ILJ 1 (LAC), the job description is not cast in stone or moulded in steel, and that employees cannot hold an expectation that a job description, once issued, can never be changed.


Thus, the job description (or preferably the employment contract)  should also include a provision stating that the functions and responsibilities listed in the job description may be changed at any time, depending upon the operational requirements of the employer, and within the parameters of the post held by the employee.


There had been other cases where, in order to increase productivity, an employer instructed employees to operate two machines instead of one machine. A dispute arose, but it was ruled that the instruction was not unreasonable, that it fell reasonably within the ambit of the duties of the post for which the employees were employed, and that they were fully capable of operating two machines instead of one.


Employers must be careful not to rush out and make changes to job descriptions in a "willy-nilly" fashion. The subject matter of this article does not mean "Whoopee !!! Now we can change anything, or instruct them to do anything,  and they can't object."

Very far from it - everything must be done reasonably, lawfully, fairly and by following proper procedure.


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