In February 2023 the Labour Court delivered judgment in a review of an arbitration award of the CCMA. The employees concerned were charged and dismissed for gross insubordination when they refused to obey the instruction of their manager to work overtime. The CCMA found the dismissals to be substantively fair.

During evidence at the arbitration, the manager conceded that there was no specific agreement to work overtime when he gave the instruction, save that none of the employees had previously objected to working overtime. The employer argued that the employees had impliedly agreed to work overtime alternatively, that they were bound by a requirement to do so in their contracts of employment.

On review, the Labour Court found that tacit or implied consent could only be inferred where an employee had actually worked overtime without prior consent, failing which, there would be no obligation to work overtime at all.  Furthermore, since the employees signed their contracts of employment many years prior to the date on which the instruction was issued, the overtime clause in those contracts had lapsed as a consequence of section 10(5) of the Basic Conditions of Employment Act, 1997 which provides that:

An agreement [to work overtime] with an employee when the employee commences employment, or during the first three months of employment, lapses after one year.

In the absence of specific agreement to work overtime on the day in question, or a renewal of the contractual obligation, the manager’s instruction was unlawful and the employees could not be found guilty of insubordination. As a consequence, the award was set aside and the employees reinstated.

In contrast, one of the employees had signed a contract of employment requiring overtime work less than a year previously. Accordingly that employee was required to work overtime. The Labour Court noted that failure by an employee to comply with a reasonable and lawful instruction of the employer may justify a dismissal, provided it is deliberate and serious. Whether dismissal is appropriate entails a consideration of the totality of the circumstances which include the: importance of the rule breached, reason the sanction was imposed, harm caused by the employee’s conduct, question of additional training and the effect of dismissal on the employee and their service record.

In this instance, it was a first offence and the employee should have received a warning or final written warning. The Labour Court set aside this part of the award and ordered the employee’s reinstatement.

This judgment highlights the importance of ensuring overtime clauses are renewed annually after the first year of employment or that employees provide express consent when instructed to work overtime. Employers should also note the court’s approach to determining the appropriate sanction should an employee refuse.

Association of Mineworkers and Construction Workers Union obo Mkhonto and others v Commission for Conciliation, Mediation and Arbitration and others [2023] 5 BLLR 403 (LC)  link here

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