At the core of any Employer-Employee relationship emanates a common law duty of an Employee to render services to an Employer; however, it happens every so often that the Employer will require the Employee to render services beyond their contractual hours, commonly known as “overtime”. Overtime is essentially an instruction that requires an agreement, an acceptance or acknowledgement of the instruction by the Employee; however, when an Employee refuses to work overtime, what recourse does an Employer have?

In the matter of Palluci Home Depot (Pty) Ltd v Herskowits and Others (2015) 36 ILJ 1511 (LAC), in determining the appropriateness of the sanction of dismissals in cases of insubordination, the Court observed that the mere acts of insolence or insubordination do not justify dismissal unless the conduct is serious and willful. This includes the consideration of the totality of the circumstances. Where the conduct is deemed gross in nature, the Employer is obligated to issue a warning prior to the final sanction of dismissal to ensure that substantiative and procedural fairness prevails.

The Labour Court further expounds on this in the matter of Maripane v Glencore Operations South Africa (Pty) Ltd (2019) 8 BLLR 750 (LAC), wherein the Court held that the reasonableness of any instruction also depends on its lawfulness and enforceability. It seems axiomatic that any instruction to do what is unlawful or in breach of a contractual term is not reasonable”.

In the recent case of AMCU obo Mkhonto and Others v Commission for Conciliation, Mediation and Arbitration and Others (JR2266/17) [2023] ZALCJHB 23 (13 February 2023), the Court held that the finding that the Employees were guilty of gross insubordination for refusing to work overtime is “unreasonable and stands to be reviewable and set aside”. The dismissal of the Employees amounted to be “manifestly incongruent and unfair” since the Employees did not consent to work overtime prior to the incident. Retrospective reinstatement was found to be justifiable in the circumstances.

It was apparent in paragraph 26 of the above-mentioned case that the following should be considered when issuing a successful disciplinary sanction for refusal to work overtime; whether:

  1. A lawful instruction is set in place.
  2. An explicit or clear agreement has been duly provided.
  3. The refusal of such an instruction is lawful, reasonable and without malicious conduct.
  4. The sanction issued is appropriate, progressive, and persistent.

In the absence of an agreement to work overtime, such an instruction may be unlawful as it goes against the contents stipulated in Section 10 of the Basic Conditions of Employment Act (BCEA). The Labour Appeal Court further supports the matter in the above-mentioned case of Maripane v Glencore Operations South Africa (Pty) Ltd (2019) 8 BLLR 750 (LAC), that in considering whether refusing to obey an instruction amounts to insubordination depends on various factors. The Employer should consider the Employee’s record of conduct, whether the Employee’s refusal to obey an instruction was willful and malicious; moreover, the instruction’s lawfulness and enforceability must be viewed seriously. The Court held, “in my view, an agreement that is contemplated in Section 10 (1)(a) of the BCEA could be inferred only when an Employee had ‘actually’ worked overtime without prior consent. Otherwise, without prior consent, an Employee would be under no obligation to work overtime.”

In proper consideration of the above cases, Employers dismissing Employees for mere insolence or insubordination cannot be justified unless it is serious and willful, as highlighted in the case of Palluci Home Depot (Pty) Ltd v Herskowits and Others (2015) 36 ILJ 1511 (LAC). The Employer should practice caution in issuing a sanction of dismissal where insubordination was not willful or malicious and must further ensure that progressive disciplinary action is followed. Employers should further consider that the instructions where Employees are required to work overtime are lawful, reasonable and enforceable in correlation to the contents of Section 10 of the BCEA.

Article by Dineo Mashao

Dispute Resolution Official – Pretoria