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)  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 wenton to consider that there was no evidence that the employee’s acted willfullyand repeatedly in considering whether the dismissal for the charge ofinsubordination was appropriate.
An instruction to work overtime must always be lawful. An instruction to workovertime absent an agreement would therefore mean the instruction if notlawful. Therefore, there is no expectation for employees to carry out thisinstruction. Should they fail to carry out this instruction absent anagreement, they cannot be successfully disciplined.
Itwould be interesting to see whether the position would have been different hadthere been an overtime policy to this effect that the employees have signed inacknowledgement. Whilst it may be apparent that policies are there to guideparties in the course of employment and to establish protocol, would theacknowledgement of this policy by an employee have been taken as an agreement?
Thepresent view is that as and when the need to work overtime arises, employersmust agree with employee’s that they will work overtime. A policy thatemployees will have to work overtime as and when expected is not sufficientwhere it does not establish procedures relating to overtime. An acknowledgementof the policy on overtime on its own will not seem to be helpful as that on itsown does not establish ‘agreement’.
Therefore,employers cannot rely on the employment contract after one year failing anyother subsequent agreements for employees to work overtime. They also need tobe careful in developing policy that such policy makes procedures that willinevitably achieve the goal of receiving an agreement from the employee to workovertime. Any instruction issued on overtime must be lawful, an agreement to doso establishes this ‘lawfulness’ and creates cause for discipline when there isrefusal.
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