Picture this: you’re a junior employee at a major bank and your supervisor – someone with years more experience, and authority over your career, tells you to do something you know is wrong. You’ve already reported a cash shortage properly, but now you’re being instructed to falsify records to cover it up.
Do you refuse and risk being labelled insubordinate, potentially being sidelined or losing your job for defying authority? Or do you comply and hope that following the chain of command will protect you from consequences?
This was the impossible choice facing Banele Mbuyane, a treasury custodian at Standard Bank, whose case recently came before the Labour Court. His story illuminates a tension in employment law: the collision between an employee’s duty to obey instructions and their obligation to maintain honesty and integrity.
The outcome of his case should concern anyone who has ever found themselves caught between competing loyalties in the workplace.
The facts are straightforward yet troubling. Mbuyane discovered a cash shortage in coin bags received from a security company. He did exactly what any responsible employee should do: he reported the problem to his supervisor, a Ms Nkosi.
Fired for dishonesty
What happened next, however, transformed him from a diligent employee into a dismissed one. Nkosi instructed him to process the transaction as if the full amount had been received, knowing this would create a false balance sheet. Despite understanding that this was a misrepresentation, Mbuyane followed the instruction.
When the shortage was later discovered during a surprise inspection, both he and his supervisor were dismissed for dishonesty.
The legal principles at stake here are well established. At common law, employees have a fundamental obligation to follow reasonable and lawful instructions from their employers. This duty forms the bedrock of the employment relationship and maintains the hierarchical structure necessary for organisational functioning.
The corollary is equally clear: employees who refuse to follow such instructions may face discipline, including dismissal. This framework has served the employment relationship for centuries, providing predictability and order in the workplace.
But what happens when an instruction is neither reasonable nor lawful? The law recognises that employees cannot be expected to follow orders that require them to break the law or act dishonestly.
Indeed, the Labour Court in Mbuyane’s case acknowledged that employees have a “positive duty not to follow unlawful instructions”. This principle protects employees from being forced into compromising positions by unscrupulous employers or supervisors.
The arbitrator in Mbuyane’s case found that it must have been clear to him that he was being instructed to make a false representation. The instruction was therefore unlawful, and his duty was to refuse it.
The Labour Court endorsed this reasoning, finding that the arbitrator’s rejection of the “acting under instruction” defence was justified because “it must have been clear to Mbuyane that he was being instructed to make a false representation which he must have known was unlawful”.
The court went further, emphasising that if Mbuyane felt he was being placed in an impossible situation by his supervisor, “he failed to report it to anyone else in the bank”.
This observation reveals the court’s expectation that employees should escalate concerns when faced with unlawful instructions from their immediate superiors. The court found it was “a plausible conclusion to have drawn, even if another arbitrator could have taken the view it was a factor that warranted a more lenient sanction.”
Troubling
Yet this reasoning, while legally sound, reveals a troubling disconnect between legal theory and workplace reality. The arbitrator’s finding ignores the practical pressures that junior employees face when confronted with instructions from their superiors.
Mbuyane was in a subordinate position, lacking formal training in treasury procedures, and faced with a supervisor who had the authority to make decisions about his career prospects. The power dynamics inherent in such relationships cannot be wished away by legal abstractions.
The court’s analysis becomes even more problematic when considering the evidence that emerged during the proceedings. The branch manager testified that even the employee’s defence of obeying his supervisor’s instruction to avoid insubordination “did not mean he should have even obeyed an unlawful instruction, which was contrary to the values and principles of the bank”.
This testimony, which the court found persuasive, essentially places junior employees in an impossible bind: they must somehow divine which instructions are lawful and which are not, then risk their careers by refusing those they believe cross the line.
The case becomes even more complex when we consider that both Mbuyane and his supervisor were held equally responsible for the misconduct. This raises serious questions about proportionality and fairness.
While both technically participated in creating the false record, their positions were hardly equivalent. Nkosi had the authority to instruct and the experience to know better. Mbuyane had neither the power to resist nor the training to understand fully the implications of his actions.
The Labour Court’s expectation that Mbuyane should have reported the matter to someone else in the bank demonstrates a fundamental misunderstanding of workplace dynamics. The court seems to assume that clear reporting mechanisms exist and that employees can safely bypass their immediate supervisors without fear of retaliation.
This assumption is not supported by the evidence presented in the case, nor does it reflect the reality of most workplace hierarchies.
Superficial analysis
The court’s analysis of these competing duties was superficial. While acknowledging that another arbitrator might have taken a more lenient approach, the court failed to engage meaningfully with the practical difficulties facing employees in Mbuyane’s position. The judgment reads as if legal principles exist in a vacuum, divorced from the messy realities of workplace hierarchies and power imbalances.
This approach is particularly troubling in the context of South African employment law, which has traditionally been protective of workers’ rights. The Labour Relations Act recognises that employees are often in vulnerable positions and need protection from exploitation.
Yet in cases like Mbuyane’s, the law seems to abandon this protective approach in favour of abstract principles that may be impossible to apply in practice.
The court’s treatment of Mbuyane’s lack of training as irrelevant is especially problematic. The bank provided no specific training for treasury custodians on how to handle cash shortages.
When faced with an unclear situation, Mbuyane did what many employees would do: he sought guidance from his supervisor and followed the instruction given. That this reasonable approach led to his dismissal suggests a legal framework that is disconnected from workplace realities.
The case also highlights the inadequacy of the “positive duty” framework. While it may be true that employees have a duty to refuse unlawful instructions, this duty is meaningless without corresponding protections.
What mechanisms exist to protect employees who refuse their supervisor’s instructions? How are they supposed to escalate concerns when their immediate superior is the source of the problem? The court’s suggestion that Mbuyane should have reported the matter elsewhere assumes the existence of safe reporting channels that the evidence does not support.
A more nuanced approach would recognise that the power dynamics between Mbuyane and his supervisor created an inherently coercive situation. The supervisor’s instruction was not merely a request that could be politely declined; it was a directive from someone with authority over Mbuyane’s employment.
A chilling message
In such circumstances, the employee’s ability to exercise independent judgment is severely compromised.
The question of whether both should have been held equally responsible demands serious consideration. While both participated in creating the false record, their moral culpability was hardly equivalent. The supervisor initiated the misconduct and used her position of authority to secure compliance. Mbuyane, by contrast, was a subordinate who found himself in an impossible position with no clear way out.
A fairer approach would have recognised this disparity. The supervisor, as the more senior party with greater authority and presumably greater experience, should have borne primary responsibility for the misconduct. Mbuyane’s compliance, while technically wrong, was understandable given his position and the circumstances he faced.
The implications of this case extend far beyond Mbuyane’s individual circumstances.
It sends a chilling message to employees throughout the country: you are on your own when faced with impossible choices between competing duties. The law will not protect you from the consequences of following instructions from your superiors, even when refusing those instructions might be practically impossible.
The price of this gap is not just individual injustice but a broader erosion of trust in the employment relationship. When employees cannot rely on legal protections to shield them from impossible choices, the entire framework of employment law is called into question.
Mbuyane’s case should serve as a wake-up call for lawmakers and judges alike: the law must evolve to reflect the complex realities of modern workplaces, not retreat into abstract principles that ignore the human cost of legal formalism. DM