What the law says about forced overtime in South Africa

 ·8 Jul 2023

South African employees cannot be fired for refusing to work overtime if there is no binding agreement that says otherwise.

According to Section 10(5) of the Basic Conditions of Employment (BCEA), an agreement to work overtime, which concluded at the commencement of employment or within three months of employment, must be renewed, or it will lapse after 12 months.

In addition, employees cannot be fired for refusing to work overtime in the absence of a valid and binding agreement, and all circumstances must be considered in the act of insubordination before the action of dismissal occurs.

Jacques van Wyk and Michiel Heyns from Werksmans Attorneys looked at a recent case before the labour court to highlight this point:

The case

In AMCU obo Mkhonto v CCMA and Others [2023], the Labour Court (LC) was asked to determine if it was fair to dismiss an employee for their refusal to work overtime and whether such refusal constituted gross insubordination.

Four employees of Andru Mining Ltd, who were represented by the Association of Mineworkers and Construction Workers Union (AMCU), were fired for gross insubordination for disobeying an order from their site manager to work overtime.

AMCU then referred the matter to the Commission for Conciliation, Mediation and Arbitration (the CCMA), where the matter remained unresolved at conciliation and proceeded to arbitration.

The arbitrator said that the dismissal of the employees was substantively fair.

AMCU then took the matter to the LC after contending that the CCMA commissioner made an error in finding that there was an agreement which bound the employees to work overtime.

The union further argued that the employees could not be found guilty of insubordination as the instruction to work overtime was unlawful, given there was no agreement between ANDRU and the employees to work overtime.

ANDRU said that the employees were bound by their respective contracts to work overtime, whilst AMCU argued that the instruction to work overtime was unlawful as the overtime clause in their contracts lapsed after a year.

Section 10 of the the BCEA said that:

  1. [A]n employer may not require or permit an employee to work –
  2. overtime except in accordance with an agreement;
  1. 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.

The LC investigated the employees’ respective employment contracts and found that one employee had not agreed to work overtime at the commencement of his employment like his fellow employees. The employee, thus, had to binding a contractual agreement to work overtime.

Two other employee contracts had an overtime clause in which they had agreed to work overtime, but these contracts were signed in 2008 and 2011, respectively.

However, the instruction to work overtime was made in 2017, well after the overtime clauses had already lapsed as per the BCEA. 

The employer’s instruction to work overtime for these three employees was deemed unlawful and unreasonable. The LC, thus, set aside the commissioner’s findings that the three employees were guilty of gross insubordination.

In making its ruling, the LC looked at the precedent set by the Labour Appeal Court (LAC) in Maripane v Glencore Operations South Africa (Pty) Ltd [2019]. The LAC said that:

“The reasonableness of any instruction also depends on its lawfulness and enforceability…any instruction to do what is unlawful, or in breach of a contractual term is not reasonable”.

However, the fourth employee’s circumstances were different as he had consented to work overtime in his employment contract, and one year had not yet lapsed when the instruction to work overtime was given.

Therefore, the instruction was deemed lawful, and his refusal to work overtime constituted insubordination.

The court still had to consider how appropriate the dismissal was in the fourth employee’s case.

An enquiry into the appropriateness of an order requires the presiding officer to consider the circumstances holistically, including the significance of rules breached, the reason the employer dismissed the employee, the damage caused by the employee’s conduct and the effect of the dismissal on the employee.

The court, thus, drew on Palluci Home Depot (Pty) Ltd v Herskowitz and Others (2015), where the LAC dealt with the appropriateness of dismissals in cases of insubordination.

The LAC said that insubordination does not justify dismissal, and failure to comply with reasonable and lawful instructions must be intentional and serious to justify being fired.

The attorneys said that dismissal is a measure of last resort and must be reserved only for gross insubordination.

The LC said that the dismissal was disproportional and unfair and set aside the commissioner’s findings in regard to the fourth employee.

The court noted that the insubordination was the first offence and was not accompanied by any insolence.

The employer also could not give any other evidence that the employee acted intentionally and repeatedly.

The LC said that disciplinary action, such as a final written warning, would have been more suitable.

ANDRU was, thus, ordered to reinstate all four employees retrospectively with full back pay.

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