Labour Court rules against 'just following orders' defence in South Africa

Dishonesty, even when instructed, breaches the trust at the heart of the employment relationship and can justify a dismissal, according to Amandla Makhongwana, senior associate at Bowmans.

Makhongwana says the Labour Court’s judgment in Mbuyane v Dekker NO and Others (JR1173/2020) [2025] ZALCJHB 224 serves as a poignant reminder that integrity is not negotiable, even under pressure from management.

Banele Innocent Mbuyane, a former treasury custodian at Standard Bank, shared operational duties with his supervisor, Ms Nkosi. According to Amandla Makhongwana, senior associate at Bowmans: “In carrying out this function, Mbuyane and Nkosi were responsible for receiving cash from a security company, SBV. If 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 a coinage bag and alerted Nkosi. Despite agreeing to return the bag, “Nkosi instructed him to record the full amount that was originally ordered instead of the actual amount received,” says Makhongwana. Mbuyane complied, and the falsified balance was submitted, misrepresenting the bank’s actual cash position.

A surprise inspection by the risk mitigation team at Standard Bank uncovered the discrepancy, along with two other shortfalls. Both Mbuyane and Nkosi were dismissed. Mbuyane challenged his dismissal at the Commission for Conciliation, Mediation and Arbitration (CCMA), maintaining that he had simply followed a superior’s instruction.

“The arbitrator found that Mbuyane’s conduct amounted to serious misconduct despite acting on his supervisor’s instruction,” says Makhongwana.

Mbuyane’s failure to escalate the misrepresentation to higher management was seen as a critical breach of trust. Moreover, the CCMA rejected the notion of an accepted informal practice of overlooking shortfalls. As Makhongwana puts it, “No practice could override the bank’s formal policies and ethical standards.”

Seeking a remedy, Mbuyane approached the Labour Court to review the arbitration award. The Court upheld the findings of dishonesty, holding that “compliance with an unlawful instruction does not excuse misconduct.” It was found that Mbuyane deliberately submitted inaccurate records over two days and had a duty to act lawfully, regardless of who issued the directive, says Makhongwana.

Defences based on insufficient training did not hold water. “Testimony by the branch manager confirmed that no specific training was available for treasury custodians and that expectations were clear for a person in Mbuyane’s position,” says Makhongwana. Even if an informal practice of retaining short coin bags existed, it was unauthorised and irrelevant to the charge of misrepresentation.

The argument that Mbuyane lacked fraudulent intent was dismissed as immaterial. The case rested on dishonesty, not fraud, and the Court held that the decision to dismiss was fair, even if another arbitrator might have considered a lesser sanction.

Ultimately, the Labour Court dismissed the review, reinforcing the legal principle that instructions from superiors do not absolve employees from wrongdoing. The judgment reasserts the critical role of ethical conduct in maintaining institutional credibility.

"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," says Makhongwana.

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