Employers are often faced with challenges when the business requires their employees to work overtime for in a certain period.
Section 10 of the Basic Conditions of Employment Act, 75 of 1997 (the BCEA) provides that, “subject to this Chapter, an employer may not require or permit an employee to work overtime, except in accordance with an agreement. An agreement concluded in terms of subsection 1 with an employee when an employee commenced employment, or during the first three months of employment, lapses after one year”.
The Labour Court in AMCU obo Mkhonto and Others v CCMA and Others [2023] ZALCJHB 23 reviewed the award issued by the CCMA in which the dismissal of the employees were found to have been substantially fair after they were dismissed for refusing to obey the instruction by a Site Manager to work overtime in order to meet production targets. The employer relied in a clause in the employment contracts which required employees to work overtime, while the trade union countered this with the argument that the instruction to work overtime was unlawful in terms of Section 10 as referred to above. The Labour Court examined the employees’ employment contracts and found that the clause in the employment contract that required the employee to work overtime was unenforceable as it was concluded more than a year ago – refer to Section 10(5) of the Basic Conditions of Employment Act:
“an agreement concluded in terms of subsection (1) with an employee when the employee commences employment, or during the first three months of employment, lapses after one year”.
Employers can therefore only rely on the clause in an employment contract in terms of which employees agree to work overtime for one (1) year from the commencement of the contract. After that, or in the absence of such a clause, the employer has to first secure the employee’s agreement to work overtime, before they can pursue a charge of insubordination in this regard.
Regarding refusal by an employees to obey an instruction, the Labour Court quoted the Labour Appeal Court’s decision in Maripane v Glencore Operations SA (Pty) Ltd [2019] 8 BLLR 750 (LAC) where it held that “whether refusal to obey an instruction amounts to insubordination also depends on various factors including the employee’s conduct before the alleged insubordination, the wilfulness of his refusal to obey, and the reasonableness of the instruction”.
The court also quoted the Palluci Home Depot (Pty) Ltd v Herskowitz and Other (2015 36 ILJ 1151 (LAC) which held that “when dealing with the appropriateness of a sanction of dismissal in cases of insubordination, acts of mere insolence and insubordination do not justify dismissal, unless they are serious and wilful. A failure of an employee to comply with a reasonable and lawful instruction or defiance of the authority may justify dismissal provided it is wilful/deliberate and serious. The sanction of dismissal should be reserved for instances of gross insolence and gross insubordination”.
Employers are advised to consult experienced and seasoned labour law consultants when faced with similar situations, as any mishandling of the situation may have far reaching consequences.