Pretoria - The question of whether it is a dismissible offence not to work overtime when requested to do so if a worker does not have an agreement with his or her employer in this regard, came under the spotlight in the Labour Court, sitting in Johannesburg.
The court concluded that if there was no agreement to work overtime, the instruction to do so was unlawful as it was against the Basic Conditions of Employment Act.
The issue was sparked by the Association of Mineworkers and Construction Union (Amcu) on behalf of four of its members working for the Andru group. On the day in question, the four employees’ normal working hours were from 6am to 4pm.
Their site manager instructed them to work overtime to meet production targets, but they refused. According to the mine, this conduct resulted in a loss of production.
The four were charged with gross insubordination and fired by their employer for the refusal to obey an instruction to work overtime.
The union, on behalf of the employees, turned to the CCMA to dispute the dismissals, but it was found that these were substantively fair.
They approached the Labour Court to have the CCMA’s finding overturned. The union argued that the instruction to work overtime was unlawful and unenforceable. It said an employer could never fire workers under these circumstances.
The manager said he had instructed the entire mining team to work overtime that day. Four miners simply refused.
According to the manager, some also said they would not be working overtime because they would be going to church, which he understood to mean they would be drinking alcohol.
There was a dispute as to whether all the employees were present when the instruction was issued. But they conceded that they were aware of the instruction, yet they did not agree to work overtime.
During arbitration proceedings following the four’s dismissal, the commissioner found that there was a work agreement in place, which bound the employees to work overtime.
The mining company argued that its employees were bound by their respective contracts of employment to work overtime.
Amcu’s evidence, on the other hand, was that the employees also did not agree to work overtime because of safety issues, as the water cart and grader were not operational on the day in question.
The union argued that the workers could not have been guilty of insubordination because the instruction to work overtime was unlawful. The mining company, on the other hand, relied on the overtime clause in the workers’ contracts of employment.
But the union said in most cases the clause had lapsed a year after the conclusion of those contracts and it was thus not enforceable.
One of the fired miners, according to his contract of employment, had not agreed to work overtime when he started to work at the mine. Thus there was no binding contractual obligation to work overtime. The others’ contracts of employment had an overtime clause in terms of which they consented to work overtime.
But, the court was told, by the time the instruction was issued to work overtime in 2017, the overtime clause in their contracts of employment had already lapsed.
Judge Portia Nkutha-Nkontwana said it stood to reason that, with no agreement in place to work overtime on the day in question in 2017, the manager’s instruction was unlawful.
She said there was no evidence that supported the commissioner’s finding that there was an implied or tacit agreement to work overtime.
The finding that they were guilty of gross insubordination was unreasonable. The judge ordered that they be reinstated with backpay.