Can you refuse to work overtime? If so, can you be dismissed for refusing to work overtime? Also, can a tacit agreement become enforceable to compel an employee to stay and work overtime? These are all questions that were posed and answered in the recent Labour Court judgment of AMCU obo Mkhonto and Others v Commission for Conciliation, Mediation and Arbitration (CCMA) and Others, and reminds employers on what to do should their business rely on overtime work.

For many businesses in South Africa, overtime work is a necessity to keep their operational needs above water. Employers rely on it to sustain their business while employees rely on it for the extra one and a half times their wage.  However, in some instances, an employee may refuse to adhere to an instruction to work overtime. In this case, how can an employer ensure that he can legally compel employees to work that given shift? This article briefly points out when and how an employer’s instruction to work overtime becomes unlawful and what steps an employer should take to avoid this happening.

Section 10 of the Basic Conditions of Employment Act (BCEA) specifically pertains to overtime work. Section 10(1)(a) prohibits overtime work in the absence of any agreement thereto. 

Therefore, if there is no prior agreement, an employer's instruction for overtime work has no legal standing. Additionally, if an employee refuses to work overtime without prior agreement, it cannot be deemed insubordination or a valid reason for dismissal due to insubordination. Similarly, there is an often-overlooked provision in the BCEA section 10(5). This section requires that an agreement to work overtime, as referred to in section 10(1), that is concluded when the employee commences employment or within the first three months of employment, lapses after twelve months, and must be renewed thereafter. If the twelve months have elapsed, and the clause has not been renewed, it would mean that should the employer instruct the employee to work overtime and they refuse, the employer would have no leg to stand on to compel the employee to do so.

This is seemingly what has happened in the abovementioned judgment of AMCU obo Mkhonto and Others v CCMA and Others.

The facts of the case in a nutshell: several employees were charged and dismissed for gross insubordination for failing to obey an instruction to work overtime. The question that needed to be answered was whether the instruction was lawful, and in effect, whether the employees’ refusal amounted to insubordination. The CCMA held that when their manager instructed them to work overtime, none disagreed. Because of this, the Commissioner found that it created an implied or tacit agreement, and the employees were therefore obligated to work their overtime, thus making the instruction lawful. The Labour Court ruled that since the clause in the employees' contracts that referred to overtime work had already expired, the instruction to work overtime was deemed unlawful in the absence of any agreement to work overtime.  The Labour Court further held that there was no evidence to support the Commissioner’s finding that an implied or tacit agreement existed. Finally, in answering the question of whether dismissal is an appropriate sanction for insubordination, the court held that if insubordination is the first offence, not accompanied by insolence, and was not willful, then dismissal is inappropriate and unreasonable. Instead, a progressive disciplinary sanction in the form of a warning or final written warning would have been appropriate. 

This is an important lesson for employers to keep in mind, especially those whose businesses depend on overtime work. It is especially important that employers not fall into the trap of forgetting about section 10(5) and renewing their employees' overtime clause every 12 months, because should they fail to do this, they risk the chance of having no one work a necessary and crucial overtime shift.

WRITTEN BY BRIDGETON PETOORS

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