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Pretoria News reports that 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 regard to the matter, recently came under the spotlight in the Labour Court.
The court concluded that if there was no agreement to work overtime, an instruction to do so was unlawful as it was against the Basic Conditions of Employment Act. The issue was raised 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. The four were charged with gross insubordination and fired 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 had been substantively fair. It then approached the Labour Court to have the CCMA’s finding overturned. It emerged that 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. The contracts of employment of the others had an overtime clause in terms of which they had 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 had already lapsed. Judge Portia Nkutha-Nkontwana ruled that, with no agreement in place to work overtime on the day in question in 2017, the manager’s instruction was unlawful. She also found no evidence that supported the CCMA’s finding that there had been an implied or tacit agreement to work overtime. The judge ordered that the workers be reinstated with backpay.
- Read the full original of the report in the above regard by Zelda Venter at Pretoria News
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