When Following Orders Becomes a Firing Offense: A Critical Examination of Workplace Power Dynamics and Legal Fairness

The Uncomfortable Question

Should employees face dismissal for following their supervisor's direct instructions, even when those instructions involve unlawful activity? A recent Johannesburg Labour Court ruling forces us to confront this deeply troubling question and examine whether our legal system truly understands the complex realities of workplace power dynamics.

The Impossible Choice

The employee found himself in a situation that countless workers face daily: caught between competing obligations. When he discovered a cash shortage in coin bags at his workplace, his supervisor instructed him to process the transaction as if the full amount had been received, effectively creating a false balance sheet. The employee understood this was misrepresentation, yet he followed the instruction. When a surprise inspection later revealed the discrepancy, both the employee and the supervisor were dismissed for dishonesty.

But was this outcome fair? More importantly, does it reflect the practical realities of workplace hierarchies and power structures?

The Court's Troubling Logic

The Labour Court's ruling presents a deeply problematic approach to workplace accountability. The arbitrator determined that the employee's instruction was unlawful and that he should have refused to comply, instead reporting the matter to a higher authority within the bank. The court rejected his "acting under instruction" defence, holding both employee and supervisor equally responsible for the misconduct.

This reasoning, while legally sound in abstract terms, reveals a fundamental disconnect from workplace realities.

The Power Dynamics Blind Spot

The court's decision fundamentally ignores the inherent power imbalances that define modern workplaces. When a supervisor instructs a subordinate to take specific action, that instruction carries the implicit threat of disciplinary action, poor performance reviews, or even dismissal for non-compliance. This is not theoretical—it is the lived reality of millions of workers who depend on their employment for survival.

To suggest that the employee should have simply refused his supervisor's instruction and reported her to higher authorities demonstrates a profound misunderstanding of how workplace hierarchies function. Such an approach requires employees to risk their livelihoods to uphold abstract legal principles while ignoring the practical consequences of defying direct orders from those who control their career prospects.

The Proportionality Problem

Perhaps most troubling is the court's decision to hold both parties equally responsible despite their vastly different positions of power and moral culpability. The supervisor possessed the authority to issue instructions and the responsibility that comes with that authority. She chose to abuse her position by directing subordinate behaviour that she knew was unlawful.

The employee, conversely, was placed in an impossible position by someone with power over his employment. While he understood the instruction was problematic, he was responding to the immediate practical reality of workplace hierarchy. To treat these positions as morally equivalent ignores the fundamental difference between those who wield power and those who are subject to it.

The Broader Implications

This ruling sends a dangerous message to employees across all industries. The implications extend far beyond banking. In countless workplaces, employees face pressure to cut corners, overlook safety violations, manipulate records, or engage in other questionable practices. If the law offers no protection for those who find themselves caught between unlawful instructions and employment security, we create a system that penalises the powerless while protecting those who abuse their authority.

Questions That Demand Answers

The Mbuyane case raises fundamental questions about fairness, power, and accountability in the modern workplace:

• Should employees bear equal responsibility for unlawful acts when they are following direct instructions from supervisors?

• How can legal systems better account for the practical realities of workplace power dynamics?

• What protection should the law offer to employees who face impossible choices between compliance and survival?

• Is it fair to expect workers to risk their livelihoods to uphold abstract legal principles?

Moving Forward

The question is not whether employees should follow unlawful instructions—clearly, they should not. The question is whether our legal system should recognise the practical constraints that make such choices incredibly difficult and whether it should offer meaningful protection to those who find themselves in these impossible situations. This ruling suggests we still have much work to do in creating truly fair and protective employment law.

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