Employees who refuse to work overtime

were unfair

Thato Maruapula & Lutho Zono ENSafrica

Deliberate refusal to comply with a reasonable and lawful instruction can constitute a form of misconduct, known as insubordination, and can lead to a disciplinary hearing

The recent decision of the labour court in Amcu v Andru Mining (Pty) Ltd and Others dealt with the question of whether an employer ’ s instruction to work overtime qualifies as a reasonable and lawful instruction and if noncompliance amounts to insubordination

Andru Mining (Pty) Ltd charged four of its employees with gross insubordination when they refused to obey an instruction given by their site manager to work overtime in order to meet its production goals The employer alleged that this refusal resulted in a loss of production The employees were found guilty and dismissed following an internal disciplinary hearing

Aggrieved by this outcome, the employees referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA)

However, the CCMA upheld the dismissal and the employees then sought to review the award in terms of section 145 of the Labour Relations Act, 1995

LABOUR COURT

The court reviewed and set aside the award and found that the dismissal of all four employees had been unfair Central to this finding was section 10 of the Basic Conditions of Employment Act, 1997 (BCEA)

According to this section,

HOWEVER, THE EMPLOYMENT CONTRACTS OF THE THREE OTHER EMPLOYEES DID CONTAIN AN OVERTIME CLAUSE an employer may not require an employee to work overtime except in instances where there is an “agreement” between the parties

In the absence of such an agreement, the instruction to work overtime would be deemed unlawful

The court found that none of the four employees had validly agreed to work overtime The contract of employment of one of the employees did not contain a clause to work overtime; there was therefore no obligation for her to work overtime

However, the employment contracts of the three other employees did contain an overtime clause that required them to work overtime In this situation, section 10(5) of the BCEA had to be considered This section provides that an agreement to work overtime that is concluded when the employee commences employment, or that is concluded within the first three months of employment, lapses after one year

The court found that two of these employees had been employed at the company for more than one year when the instruction to work overtime had been issued

As a result, the overtime agreements in their contract had already lapsed in terms of in section 10(5) of the BCEA Consequently, in the absence of an agreement to work overtime, the court found the instruction to the two employees to work overtime was unlawful and that they were not guilty of insubordination

However, the fourth employee’ s employment contract had an overtime clause but he had not been in employment for more than a year As such, the instruction to work overtime was lawful for this employee Despite this, the court considered the sanction of dismissal for the fourth employee’ s insubordination

It took into account the gravity of the rule breached; the reason for his dismissal; the harm caused by the employee ’ s conduct; and the fact that this was a first offence The court determined the sanction of dismissal for insubordination was disproportionate and unfair

The court ultimately reviewed and set aside the CCMA award with a finding that the dismissals were substantively unfair and ordered reinstatement with retrospective full back pay

Importantly, the court considered whether an “agreement” to work over-

THE COURT CONSIDERED THE SANCTION OF DISMISSAL FOR THE FOURTH EMPLOYEE’S INSUBORDINATION time can be implied from an employee’ s conduct in cases where there is either no agreement to work overtime or the overtime clause in the employment contract has lapsed

Although the court recognised the possibility of such an agreement, it found that in this case there was no evidence to show that there was an “implied or tacit” agreement for the employees to work overtime

It is important to bear in mind that section 10 of the BCEA does not apply to senior managerial employees or employees who earn above the threshold salary referred to in section 6(3) of the BCEA which is currently R241,110 59 per annum

● Reviewed by Peter le Roux, an executive consultant in ENSafrica’ s employment department