An employer can dismiss an employee for many reasons, for example, poor performance, misconduct, gross misconduct, etc. Of course, provided that there are just cause and excuse for the dismissal.
How about disobedience? can you get dismissed by your employer over disobedience? over refusing to carry out some instructions given by your superior?
The simple answer is yes. However, it would also depend on the degree of disobedience displayed by said employee.
Disobedience, as the name suggests, happens when an employee refuses to perform his/her duty, refusing to carry out his/her superior’s order or instruction. Disobedience is said to be a type of misconduct under the context of employment law.
So, what is said to be the ‘duty’ of an employee?
An employee cannot refuse to perform duties associated with his position, rank, or post. Doing so would constitute to disobedience. This includes all jobs that are ancillary, incidental or connected with or preliminary to his main duties.
There are a few exceptions though. An employee could refuse a task if he is asked to perform duty which is not associated with his position, rank or post, as well as duties of a higher or lower post.
For example, an accounting staff could rightly refuse his employer’s request to perform physical labour works such as unloading construction materials, or an employee could refuse to carry out illegal task which is contrary to the law requested by his/her employer.
What exactly amounts to ‘disobedience’?
According to B.R. Ghaiye’s Misconduct in Employment (3rd Edition) by J.K. Verma, a disobedience must be willful. This means that if an employee puts a particular interpretation on any order or instruction given by his/her superior in good faith and acts accordingly, he/she cannot be said to be guilty of disobedience.
Similarly, when an employee thinks that he is bound to act in a certain manner on account of mistake of fact, then also there will be no misconduct. In other words, the employee must make a deliberate choice to disobey the order/instruction.
Also, where the orders given to an employee were contradictory, difficult to understand and impossible to follow, then failure to follow them as intended by the employer and doing the best he could under the circumstances, will not constitute disobedience.
What if the employee is a member of the Trade Union? Would that make a difference as to his duty to follow orders?
Unfortunately, an office-bearer of the union does not enjoy any special privilege or immunity. He can be proceeded with if he is found guilty.
Even the employee is a member of the Trade Union, he did not cease to be an employee of his superiors (case in point:- Re: Laxmi Devi Sugar Mills). An employee could not refuse to follow orders by resorting to the theory of his dual personality. The fact that a worker is a member of a trade union does not place him above the law, He is still subjected to the same laws as the other employees.
Quantum of punishment for disobedience
Whether a workman should be dismissed or given a lighter punishment will depend upon the nature of the lapse and any other aggravating or extenuating circumstance. In another words, its basically case to case basis on the gravity of the disobedience.
Written by: Stanley Phang Weng Lam, LLB (Hons) Cardiff, CLP, Adjudicator; Researched by: Gillian Lai Nai Ling
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