Overtime and How It Works In South Africa
Is the time over for overtime?
With an economy growing at a sluggish rate, a currency under pressure, and unemployment on the rise each year, companies are relentlessly chasing production targets by increasing efficiency. In many cases, working overtime is an essential requirement in achieving those targets.
The question asked frequently by employers and employees alike is, what would happen should an employee refuse to follow an instruction from management to work overtime?
It is widely accepted that a clause in the contract of employment, confirming that an employee agrees to work overtime when required, obligates the employee to work overtime if instructed, and should the employee refuse or fail to comply with such an instruction, disciplinary action may be taken, which may ultimately result in dismissal.
The assumption referred to above, is based on Section (10)(1)(a) of the Basic Conditions of Employment Act 75 of 1997 (hereinafter referred to as “the BCEA”) which stipulates that, “an employer may not require or permit an employee to work overtime except in accordance with an agreement.”
However, to determine if the instruction to work overtime is indeed lawful, one needs to take a detailed look at Section 10(5) of the Basic Conditions of Employment Act which stipulates the following: “an agreement concluded in terms of subsection (1) with an employee when the employee commences employment or during the first three months of employment, lapses after one year.”
The question of whether an employer can dismiss an employee for refusing an instruction to work overtime was answered by the Labour Court in the case of Association of Mineworkers and Construction Workers Union obo Mkhonto & others v Commission of Conciliation, Mediation and Arbitration and other [2023] 5 BLLR 403 (LC).
In this matter, the employees were charged with gross insubordination after refusing to follow an instruction to work overtime. They were subsequently found guilty and dismissed. The employees confirmed that they were aware of the instruction to work overtime, but they did not agree to work such overtime.
The CCMA found the dismissal to be substantively fair on the basis that the employees never objected to working overtime in the past and that they were bound to work overtime in terms of the relevant clause in their contracts of employment.
On review, the Labour Court found that the overtime clause had already lapsed in accordance with Section 10(5) of the BCEA and, as a result, the instruction to work overtime was in fact an unlawful instruction. The Labour Court further held that without prior consent an employee has no obligation to work overtime. The dismissal was found to be substantively unfair and the court ordered retrospective reinstatement.
Also read – The Role Industrial Relations Play In Government, Business & Society
Therefore, an employer cannot simply assume an employee has agreed to work overtime based on the clause in the contract of employment, or because the employee has not objected to working overtime in the absence of a renewed clause.
In accordance with Section 10(5) of the BCEA, employers should ensure that overtime clauses are renewed after an employee has completed one year of employment, to avoid issuing unlawful instructions to employees to perform overtime. As seen above, failure to have a valid overtime agreement in place can prove costly to companies.
14/07/2023
Leon Theron & Amanda Booyens
