Meeting and exceeding production targets is every employer’s goal, and to achieve this an employer relies on the co-operation of its employees, sometimes with the expectation that employees will work overtime. The question of whether an employer can dismiss an employee for refusing an instruction to work overtime was the question before the Court in the case of AMCU obo Mkhonto v ANDRU Mining (Pty) Ltd.

In this matter, four employees were dismissed for gross insubordination after they refused to obey an instruction from their site manager to work overtime to meet certain production targets. AMCU subsequently referred an unfair dismissal dispute to the CCMA. In the CCMA, the commissioner found the dismissals of the individual applicants to have been fair. AMCU then approached the Labour Court to review the award.

The issue before the Labour Court was whether an employee can be dismissed for insubordination for refusing to work overtime. In considering this question, the Court looked to section 10(1)(a) of the Basic Conditions of Employment Act, which provides that an employer may not require an employee to work overtime in the absence of an agreement.

In light of section 10(1)(a) of the BCEA, the Court found that in respect of three out of the four employees, there was no agreement in existence at the time when the employees were instructed to work overtime by the site manager. Since an agreement must be concluded before an employee can be required to work overtime, the Court found that the instruction given by the site manager was unlawful.

The Court affirmed the position that an unlawful instruction cannot be said to be reasonable. Accordingly, the employees were not guilty of gross insubordination for refusing to comply with the unlawful instruction and accordingly should not have been dismissed.

The BCEA, regulates terms and conditions of employment and provides the minimum standard with which employers must comply to ensure fair labour practices in the various aspects of an employment relationship. An employer’s non-compliance with the provisions of the BCEA renders its conduct unlawful.

This case serves as a reminder to employers that the requirement to work overtime does not automatically arise from an employment relationship. An agreement must be concluded between the employer and employee in terms of which the employee consents to work overtime as and when he or she is required to do so.  The provisions of section 10(1)(a) are peremptory and accordingly, in the absence of a prior agreement, an employee is not obligated to work overtime.

The BCEA also provides that an agreement to work overtime that is concluded when the employee first commences employment lapses after 1 year – meaning that after the first year of employment a further agreement regarding overtime would need to be concluded. This is a fact that many employers may be unaware of. Does your workplace have enforceable overtime agreements in place?