Employers often enter into employment relationships with employees with the primary objective of advancing their financial interests. It is the most fundamental and known principle of employment that employees are employed to advance the employer’s financial objectives – put simply, to achieve production. But what happens when the employer refuses to work overtime? Is the agreement entered into at the commencement of the employment relationship sufficient to rely on throughout the course of employment?
An employer who dismissed employees for insubordination for refusing to work overtime has recently been ordered to retrospectively reinstate employees with full back pay. This arises after the employees refused to work overtime. The employer relied on their employment agreements which had an overtime clause. This clause has become common that most employers have it almost in all employment agreements and rely on it when employees refuse to work overtime throughout the course of employment.
However, Section 10 (5) of the Basic Conditions of Employment Act 75 of 1997 provides that such agreement entered into at the commencement or within the first three months of the employment relationship for an employee to work overtime lapses after one year. This therefore puts the employee at a position to be able to agree or disagree to render overtime. The employer to safeguard themselves against such refusals then needs to either develop sufficient policy and/or enter into new agreements for employees to work overtime.
Employers therefore cannot just rely on the employment contract to instruct employees to work overtime subject to a clause there in. The Court in AMCU obo Mkhonto and Others v Commission for Conciliation, Mediation and Arbitration and Others (JR2266/17) [2023] ZALCJHB 23 (13 February 2023) further even went on to consider that dismissal was harsh as this was the employees first offence and the refusal to work overtime was not accompanied by insolence. The Court even went on to consider that there was no evidence that the employee’s acted willfully and repeatedly in considering whether the dismissal for the charge of insubordination was appropriate.
An instruction to work overtime must always be lawful. An instruction to work overtime absent an agreement would therefore mean the instruction if not lawful. Therefore, there is no expectation for employees to carry out this instruction. Should they fail to carry out this instruction absent an agreement, they cannot be successfully disciplined.
It would be interesting to see whether the position would have been different had there been an overtime policy to this effect that the employees have signed in acknowledgement. Whilst it may be apparent that policies are there to guide parties in the course of employment and to establish protocol, would the acknowledgement of this policy by an employee have been taken as an agreement?
The present view is that as and when the need to work overtime arises, employers must agree with employee’s that they will work overtime. A policy that employees will have to work overtime as and when expected is not sufficient where it does not establish procedures relating to overtime. An acknowledgement of the policy on overtime on its own will not seem to be helpful as that on its own does not establish ‘agreement’.
Therefore, employers cannot rely on the employment contract after one year failing any other subsequent agreements for employees to work overtime. They also need to be careful in developing policy that such policy makes procedures that will inevitably achieve the goal of receiving an agreement from the employee to work overtime. Any instruction issued on overtime must be lawful, an agreement to do so establishes this ‘lawfulness’ and creates cause for discipline when there is refusal.
Source: https://www.saflii.org/za/cases/ZALCJHB/2023/23.html
https://www.gov.za/documents/basic-conditions-employment-act
