‘Just following orders’ not a defence, says the Labour Court

In the matter between Mbuyane v Dekker NO and Others (JR1173/2020) [2025] ZALCJHB 224, the Labour Court drew a firm line on workplace ethics: integrity cannot be compromised, even under pressure from a superior.

2025/08

The case reaffirms that, dishonesty, even when instructed, breaches the trust at the heart of the employment relationship and can justify a dismissal.

Background facts

Mr Banele Innocent Mbuyane (Mbuyane), an erstwhile employee of Standard Bank, was responsible for the function of treasury custodian together with his superior, Ms Nkosi (Nkosi). In carrying out this function, Mbuyane and Nkosi were responsible for receiving cash from a security company, SBV. In the event that the amount received was incorrect, they had to return the cash to SBV and prepare balance sheets that correctly corresponded with the amounts received from SBV.

In October 2019, Mbuyane discovered a shortfall in one of the coinage bags received from SBV and reported it to Nkosi. It was agreed with Nkosi, that the bag should be returned to SBV, but Nkosi instructed him to record the full amount that was originally ordered instead of the actual amount received. Mbuyane complied, and the false balance was submitted, which constituted a misrepresentation of the true position.

Subsequently, a surprise inspection by Standard Bank’s risk mitigation team uncovered the discrepancy, along with two additional shortfalls. Mbuyane was charged for dishonesty in that he knowingly submitted a false balance position. Both he and Nkosi were dismissed. Mbuyani then referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA).

Proceedings at the CCMA

Before the CCMA, the central issue was whether Mbuyane’s conduct of knowingly submitting a false cash balance at the instruction of his supervisor amounted to serious misconduct. Further, the CCMA had to decide whether dismissal was an appropriate and fair sanction in the circumstances.

The arbitrator found that Mbuyane’s conduct amounted to serious misconduct despite acting on his supervisor’s instruction. The arbitrator held that Mbuyane knowingly participated in submitting a false cash balance and had a positive duty not to follow an unlawful instruction. His failure to report the misrepresentation to higher management further aggravated the situation which was deemed a breach of the trust relationship essential to his employment.

The arbitrator also rejected the argument that there was an accepted practice of not recording shortfalls, stating that no practice could override the bank’s formal policies and ethical standards. The arbitrator held that misrepresenting facts in bank records violated the core values of integrity and ethics, rendering dismissal a fair and appropriate outcome.

The Labour Court proceedings

 Aggrieved by the decision of the arbitrator, Mbuyane sought to review the arbitration award at the Labour Court.

The Labour Court accepted that Mbuyane knowingly submitted inaccurate cash records over two days, acting dishonestly despite acting on his supervisor’s instruction. The Court found the arbitrator’s conclusion – that compliance with an unlawful instruction does not excuse misconduct – a plausible one to have drawn, even if another arbitrator may have taken the view that this was a factor that warranted a more lenient sanction. It emphasised that Mbuyane had a duty to act with integrity and if he felt that he was being put in an impossible situation, he should have reported the misrepresentation to management.

The Court further rejected his defence of inadequate training, noting that the evidence showed that the same principles governing the work he did in his prior role as a cash consultant applied equally to his role as treasury custodian. Testimony by the branch manager confirmed that no specific training was available for treasury custodians and that expectations were clear of a person in Mbuyane’s position.

The Court also examined the alleged existence of an informal practice of retaining short coin bags until replacement. It found that such a practice, even if it existed, was unauthorised and contrary to the bank’s policies. Therefore, it could not justify falsifying financial records. In any event, Mbuyane had been charged with making a false representation, not for following an incorrect procedure, so the existence of the alleged practice would not have had any impact on the finding of guilt.

Moreover, the Court considered Mbuyane’s argument that he did not act with fraudulent intent. The Court noted that it had never been Standard Bank’s case that Mbuyane acted with fraudulent intent and held that dishonesty alone, being the sole charge, was sufficient to warrant dismissal. The Court further held that, even if another arbitrator might have treated this as a mitigating factor and imposed a lesser sanction, the decision that dismissal was appropriate was not an unreasonable one.

Consequently, the Court found that the decision of the arbitrator was one which a reasonable decision-maker could have arrived at. Accordingly, the review application was dismissed.

Key takeaways

This case confirms that an employee cannot justify misconduct by claiming they were ’following orders’ where such an order was an unlawful one. While there may well be circumstances in which this may be considered as a mitigating factor in determining sanction, generally the duty to act lawfully will override the fear of insubordination.

Employers are encouraged to put in place organisational policies that include transparent procedures that empower employees to report unethical and/ or unlawful conduct by supervisors.

By Amandla Makhongwana, Senior Associate at Bowmans Law

Article published with the kind courtesy of Bowmans, for more information please visit – www.bowmanslaw.com

This article does not constitute legal advice. For an informed opinion and/or assistance with a labour-related matter, you are encouraged to arrange a formal consultation with the author.

We will continue to keep you informed and updated

Inform Empower Comply 

Since 1998