On the 8th of November 2022, the Labour Court heard the matter between the Association of Mineworkers and Construction Workers Union obo Mkhonto and Others v Commission for Conciliation, Mediation and Arbitration and Others [2023] JOL 57981 (LC). The Court had to decide whether the dismissal of the AMCU members who refused to work overtime on instruction by their employer, Andru Mining (Pty) Ltd, was fair. The Court handed down its judgment on the 13th of February 2023.

The salient facts of the matter are as follows:

On the 29th of May 2017, several members of AMCU were dismissed for gross insubordination after refusing to work overtime on the instruction of their Site Manager. The refusal to obey this instruction was alleged to have caused a loss in production for the employer. In a dispute referred to the CCMA by AMCU, the Commissioner ruled that the dismissals of the employees were substantively and procedurally fair. The matter was taken upon review by the Labour Court (LC) by AMCU on the contention that the instruction given to the employees was unlawful as their members did not agree to work overtime on that day. The employer’s view was that the employees agreed to work overtime in their contracts of employment, and the Commissioner held a similar view while further finding that the employees tacitly or impliedly agreed to work overtime as they were aware of the need and instruction to work overtime.

The LC first analysed Section 10(1)(a) of the Basic Conditions of Employment Act (BCEA), which states that a requirement to work overtime must be in terms of an agreement between the employer and employees. Section 10(5) of the BCEA also states that such an agreement concluded at the commencement of employment, or in the first three (3) months thereof, lapses after a year. The Court ruled that the BCEA requires the existence of an agreement to work overtime in terms of Section 10(1)(a) that has not yet lapsed in terms of Section 10(5) for the instruction to be considered lawful. The Court emphasised that the reasonableness of an instruction depends on its lawfulness and enforceability and that unlawful instructions are unreasonable.

An examination of the contractual obligations of the dismissed employees revealed that overtime was not contractually regulated for only one (1) employee (Mr Nthako). In contrast, it was contractually regulated for the other three (3) employees (Ms Nkebe, Mr Mkhoto, and Mr Shongwe). For Mr. Shongwe, it was held that the agreement therein was still applicable as he was still in his first year of employment. Regarding Ms Nkebe and Mr Mkhoto, the application of Section 10(5) of the BCEA meant that any agreement related to overtime had lapsed for these employees by the time the instruction was given on the 29th of May 2017. These employees who contractually agreed to work overtime began their employment in July 2008 and January 2011, respectively. Thus, the instruction to work overtime was unlawful for Mr Nthako, who never agreed contractually, tacitly, or impliedly to work overtime, as well as Ms Nkebe and Mr Mkhoto, due to the application of Section 10(5) of the BCEA.

Ultimately, the Court held that, although an agreement to work overtime can be inferred where an employee has worked overtime without prior consent, in this matter, the employer could not prove that there was an actual, tacit or implied agreement to work overtime on the 29th of May 2017. Furthermore, the threat of disciplinary action against employees who did not obey the instructions supported the view that there was no agreement. In its judgment, the Court held that the dismissals were substantively unfair and ordered the reinstatement with full backpay for the employees. In the case of Mr Shongwe, the instruction was found to be lawful, and the substantive unfairness lies in disproportionality as it was his first offence.

Employers need to understand the basics of overtime clauses in contracts of employment, the period of their lawful enforceability, and the consequences that may arise when dismissing employees for refusing to work overtime. This judgment clearly teaches employers that employees must agree to work overtime and applies to employees earning below the earnings threshold. Importantly, employers must ensure that their overtime agreements are reviewed and renewed after each year of service.

Article By Kagiso Sebetso

Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)