Working overtime is essential to an employer’s operational requirements in specific industries within our labour-sphere. If an employee refuses to work overtime when their employer requests it, it is necessary to consider the lawfulness and reasonableness of the instruction.

Although the Basic Conditions of Employment Act 75 of 1997 (BCEA) regulates the payment for overtime worked, it does not explicitly give the employer the right to instruct an employee to work overtime when it is not contractually agreed between the employer and employee. (This applies to employees or workers who earn less than the prescribed threshold of R 254 371,67 per annum as of 1 April 2024 (R 21 197,64 per month)).

Often, employment contracts contain a clause in their employment contracts whereby the employee agrees to work overtime. For example:

The employee shall be expected to work overtime, in excess of their scheduled working hours, as and when the employer reasonably requires such overtime work or when the operational requirement of the employer necessitates such work.”

However, the contractual agreement between the employer and employee is subject to the provisions of the BCEA and, therefore, does not necessarily give employers the right to request employees to work overtime.

Section 10(1) of the BCEA stipulates that: “an employer may not require or permit an employee to (a) work overtime except in accordance with an agreement; and (b) more than 10 hours overtime a week.”

Clause 10(5) of the BCEA further provides: “An agreement concluded in terms of section (1) with an employee when the employee commences employment, or during the first three months of employment, lapses after one year.”

It is essential to remember that even though a contractual agreement allows for overtime, it is subject to section 10(1)(A) of the BCEA. This section stipulates that an agreement (to work overtime) between an employer and an individual employee lapses after one year if it was concluded at the commencement of or within the first three months of employment.

This means that in the absence of a renewal of such an agreement, employees may lawfully refuse to work overtime. In Khumalo v ARP Refrigeration Manufacturing [2008] 4 BALR 332 (MEIBC), the commissioner found that the employee’s dismissal was substantively unfair when he refused to work overtime. The question before the commissioner was whether working overtime was a lawful instruction. Although there was an agreement between the employer and employee to work overtime, the agreement has lapsed after twelve months, therefore rendering the instruction unlawful.

However, even if an instruction is lawful (as per agreement between the employee and employer), it must be determined if the instruction to work overtime is reasonable and, more importantly, if the employee’s refusal leads to dismissal for gross insubordination.

In the Labour Court matter of AMCU obo Mkohonto & others v ANDRU Mining and others (2023), the Court clearly distinguished between employees contractually bound to work overtime and those not. A team of five employees had been charged with and dismissed for gross insubordination when they refused to obey the instruction from their site manager to work an extra two-hour overtime on a particular day to meet production targets. The Court found that four of the five employees’ agreements to work overtime have lapsed. Their dismissal was found unfair because they were under no contractual obligation to work overtime.

The Court further had to decide if the refusal of the instruction to work overtime (for the employee who was still under a contractual obligation to work overtime) was a dismissible offence. The Court found no evidence that the employee was guilty of gross insubordination. The employee did not act with repeated defiance but simply refused an instruction to work overtime. The dismissal was found to be unfair, and the employer should have issued the employee with a sanction short of dismissal.

Employers should tread lightly when disciplining employees who refuse to work overtime. If it is an operational requirement of a business to work overtime, employers should implement a system to ensure that the agreement to work overtime is signed annually. Employers should also include a notice period in the overtime clause and abide by that notice period if they require employees to work overtime to ensure the instruction is reasonable.

A commissioner must examine all the circumstances surrounding the refusal to determine whether the instruction was reasonable. Employers should ensure that there is an operational need for the employees to work overtime, that they give enough notice to employees to work overtime, and that they distinguish between a refusal to comply with an instruction and a repeated and wilful refusal when disciplining employees.

Article by Aletta Eksteen

Dispute Resolution Official at Consolidated Employers Organisation (CEO SA)