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Headlines – 4 Miners shot dead, 40 wounded!

Headlines – 4 Miners shot dead, 40 wounded!

This is not a report on the latest developments in the on-going strike in the platinum mines. It is a report on an incident in 1884! The following is an extract from 2000 Casualties by trade unionists Ivan Lawrence Walker and Ben Weinbren, published in 1961.

It had been customary on the diamond fields since their inception to strip and thoroughly search Native employees when they came off shift to ensure that they had not secreted some of the precious stones.

The attempt of the mine management to impose searching upon the White miners was fiercely resented and the men struck work rather than submit to it. These strikers then marched in a body to persuade their fellow miners to do the same. One of the managers threatened them with a revolver, but he was tipped off his horse and his revolver taken from him.

The men, who numbered almost a hundred and had no weapons, then went on to pull out the pumpmen at another mine. They were met by a mine official, who threatened to shoot if they came any further. The men’s leader, AO Holmes, stepped forward with outstretched arms and said “You would not shoot an unarmed man surely?”

At a yard’s distance, he was shot through the head and killed. Thereupon some 20 officials and ‘scabs’ armed with guns, who had been lying between overturned mine trucks, opened fire on the strikers. They killed four men and wounded about 40, 3 of whom died later. An inquest took place and later a judicial tribunal found that the killing of seven unarmed strikers and the wounding of some 40 others was “amply justified”.

Well, we have made some progress since then but the same old basic problems still exist. Greed leading to unequal distribution of incomes and theft; lack of respect and trust; polarisation along racial lines and most importantly lack of aligned goals.

There is an evil streak in some people which makes them lie, cheat and steal. Management has a duty to protect the interests of the business against such people but they are a minority. It is a mistake to assume that everyone is out to lie, steal and cheat because that is not the case.

If there is stock theft and absenteeism, it needs to be stamped out and the culprits dealt with. That is why it is important to create a positive working environment where the majority of employees feel engaged and do not tolerate the liars, thieves and cheaters in their mist. It is also necessary to implement systems, policies and procedures which enable line management to identify and deal with problem employees.

Bruniquel & Associates (B&A) founded in 1981 and leaders in labour relations training, has over the years, assisted employers to adjust to the changing labour legislation and environment through its pro-active approach. Industrial Relations and leadership courses offered by B&A, arguably the best of their kind, are designed to defuse tension and empower people in the workplace.

B&A offers a full HR/IR consulting service to ensure that management understands the power dynamics in the workplace and develops a proactive HR/IR strategy to deal with issues such as stock theft, excessive absenteeism, militant shop stewards and disciplinary and grievance problems.

Click here for a complete list of B&A’s Seta accredited industrial relations and leadership courses and it’s consulting service.

What do you do when an employee refuses an instruction?
Common law requires employees to carry out the instructions of their employer and in addition to that, most employment contracts include a clause to the effect that:

“The Employee shall notwithstanding the above job title, be obliged to carry out any lawful instruction given to him / her by the Employer even though this may not be related to his / her position.”

In other words, as long as the instruction is lawful, the employee is contractually bound to carry it out. Failure to do so constitutes insubordination and can result in summary dismissal (i.e. dismissal without notice or notice pay).

It might look straightforward but unfortunately these situations often go awry for employers, especially when managers become angry.

Calling the boss an idiot found not to be grounds for dismissal
For example, a number of years ago in a well reported case, a General Manager was dismissed for insubordination after he had called his new Managing Director an idiot. It transpired that the Managing Director had wanted to retrench employees immediately, without following the required LRA procedure.

The GM had refused to carry out the instruction, calling his boss ‘an idiot’ in a heated discussion. This ultimately led to the GM being dismissed for insubordination and him referring his case to the Industrial Court. The Court found the dismissal to have been unfair and awarded compensation. In its judgement, the Court inferred that the MD’s conduct had indeed been idiotic because the he had expected the GM to carry out an unlawful instruction.

Similarly, a manager may not expect an employee to carry out a task which would expose him or her to danger not normally connected with the performance of his / her duties or which could result in the employee facing disciplinary or criminal charges.

The difference between insubordination and insolence
The Oxford dictionary defines insubordinate as ‘disobedient; rebellious’. Insubordination must be distinguished from insolence which is defined as ‘offensively contemptuous or arrogant; insulting’. While insolence may well result in dismissal, it is not considered as serious as insubordination. This is because insubordination goes to the root of the employment relationship. The employer pays the employee to carry out instructions. If the employee refuses the whole employment relationship breaks down.

‘It’s not my job’ is no excuse but look for the underlying cause
Refusals to carry out instructions because ‘it’s not my job’ usually stem from employees being misinformed or misled by others, especially in the lead up to strikes. Employees may also refuse to carry out instructions if they feel that they are being singled out unfairly or are being overloaded with work. There is usually a lot of underlying emotion involved in these situations and it is advisable therefore to treat these situations sensitively.

Employee’s point of view
From an employee’s point of view, if you feel aggrieved by an instruction, rather than put yourself at risk, comply with the instruction as best you can and then lodge a grievance. DO NOT REFUSE to carry out the instruction, no matter how right you think you are, as it could cost you your job.

From the employer’s or manager’s point of view, these are really ‘no-win’ situations so they need to be handled carefully.

GUIDELINES FOR HANDLING A REFUSAL TO CARRY OUT AN INSTRUCTION:

1. Explain why the task is necessary and give the employee the instruction in a clear and unambiguous manner e.g. “I am giving you a lawful instruction to ……………….”
2. If the employee refuses, ask why? Listen to understand – not to respond.
3. If there is no good reason for the refusal, explain that refusal to carry out the instruction is a serious breach of the employee’s contract of employment.
4. Explain the consequences of continuing to refuse to obey the instruction: e.g. “Your refusal / failure to obey this instruction constitutes a serious disciplinary offence and will result in a disciplinary enquiry which COULD lead to your dismissal.”
5. Give the employee a deadline by which to carry out the instruction. This should be reasonable and allow a cooling off period for the employee to reconsider his / her actions.
6. Put the instruction in writing and ask the employee to sign acknowledgement of receipt. If the employee refuses to sign, call a witness, read out the instruction and ask the witness to sign.
7. If the employee has not carried out the instruction by the set time limit, suspend the employee from work and tell him / her to report to you the following morning. This will allow a further ‘cooling off period’ for the employee to consider the consequences of failing to carry out the instruction.>
8. The next day establish whether the employee has changed their mind. If so, issue the employee with a written warning (which may be a final warning depending on the circumstances). Allow the employee to go back to work but make sure that the employee actually carries out the instruction.
9. If the employee still refuses to carry out the instruction, issue the employee with a notice of a disciplinary enquiry and suspend the employee from work. The charge will be Insubordination – failing to carry out a lawful instruction in that you ……. (Details of the instruction). The suspension must be on full pay and the employee must be given at least 24 hours’ notice of the enquiry (48 hours is preferable).

If a process like this is followed and the instruction is lawful and reasonable, the employee will have only himself to blame for his dismissal. In the event of the employee contesting the dismissal, it can be easily justified by the employer.