What is required for an employer to be able to issue a valid instruction to an employee to work overtime? In terms of the Basic Conditions of Employment Act (s10(1)), statutory overtime work may only be insisted upon when the employee has agreed to it. Issuing an instruction to work overtime when the employee has not agreed to it, is therefore of no legal effect and it cannot constitute insubordination if the employee fails to do so. For many businesses, overtime work is an operational necessity and management needs to know that employees will do so when this is necessary – hence it is regularly made clear that this is a term and condition of an employee's employment, usually by way of a clause in their standard contract of employment. This clause typically requires employees to agree up front to work overtime when this is needed in terms of operational demands of the business, and the employee’s signature of the contract is then regarded as the necessary ‘agreement’ having been obtained for all overtime work going forward. However, s10(5) of the BCEA has a proviso to this agreement being obtained when an employee starts work – and this proviso is often missed or ignored by employers. This section requires that an agreement to work statutory overtime that is concluded during the first 3 months of employment, must be renewed after the first 12 months of employment to remain valid. Failure to do so will render the initial agreement to work overtime to be of no effect. If such renewal has not been done, then the agreement is considered to have lapsed after 12 months and the employer then has no leg to stand on for issuing valid overtime work instructions thereafter. This is what had happened in the recent case of AMCU obo Mkhonto and Others v Commission For Conciliation, Mediation And Arbitration and Others (JR 2266/17)  ZALCJHB 23 (13 February 2023), where a number of employees were charged and dismissed for gross insubordination, in that they refused to obey the instruction from their Manager to work overtime. Interestingly, they did not outright refuse or object when the instruction was given during a meeting, but they nevertheless failed to do the work. The CCMA interpreted this as ‘tacit agreement’ to work overtime by the employees, and also said that they were in any event bound by the clause in their contracts of employment to work overtime as and when required. Hence, that they had been insubordinate by not complying with the instruction. On review, the Labour Court, however, agreed with the union that this instruction had been unlawful in the absence of an explicit agreement by the employees to work overtime on the day, since the initial agreement in their contracts had already lapsed for those employees who had been employed for longer than one year. There was one employee who had been employed for less than a year, and in his case, the court accepted that he had been insubordinate. It however found that dismissal of the employee (for a first offence) had been inappropriate, since his failure to work overtime was not ‘gross’ or ‘wilful’ and there was no evidence that the trust relationship and continued employment had been damaged beyond repair. Even though the employer tried to use the loss of production to justify the sanction of dismissal, it failed to give the details of the production that was lost and the cost thereof. Progressive disciplinary sanction in a form of a warning or final written warning would therefore have been appropriate. The employees in this case were accordingly all reinstated, with backpay. This is an important lesson for employers who rely on overtime work to keep their operations running smoothly – in particular, to make sure that overtime agreements in the contract of employment are renewed after the initial 12 months of an employee’s employment.
© Judith Griessel