PP Smit Attorneys

Can you refuse to work overtime? If so, can you be dismissed for refusing to work overtime? Also, can a tacit agreement become enforceable to compel an employee to stay and work overtime? These are all questions that were posed and answered in the recent Labour Court judgment of AMCU obo Mkhonto and Others v Commission for Conciliation, Mediation and Arbitration (CCMA)[1] and Others, and reminds employers on what to do should their business rely on overtime work.

For many businesses in South Africa, overtime work is a necessity to keep their operational needs above water. Employers rely on it to sustain their business while employees rely on it for the extra one and a half times their wage.[2] However, in some instances, an employee may refuse to adhere to an instruction to work overtime. In this case, how can an employer ensure that he can legally compel employees to work that given shift? This article briefly points out when and how an employer’s instruction to work overtime becomes unlawful and what steps an employer should take to avoid this happening.

Section 10 of the Basic Conditions of Employment Act (BCEA) specifically pertains to overtime work. Section 10(1)(a) prohibits overtime work in the absence of any agreement thereto.

Therefore, if there is no prior agreement, an employer’s instruction for overtime work has no legal standing. Additionally, if an employee refuses to work overtime without prior agreement, it cannot be deemed insubordination or a valid reason for dismissal due to insubordination. Similarly, there is an often-overlooked provision in the BCEA section 10(5). This section requires that an agreement to work overtime, as referred to in section 10(1), that is concluded when the employee commences employment or within the first three months of employment, lapses after twelve months, and must be renewed thereafter. If the twelve months have elapsed, and the clause has not been renewed, it would mean that should the employer instruct the employee to work overtime and they refuse, the employer would have no leg to stand on to compel the employee to do so.

This is seemingly what has happened in the abovementioned judgment of AMCU obo Mkhonto and Others v CCMA and Others.

The facts of the case in a nutshell: several employees were charged and dismissed for gross insubordination for failing to obey an instruction to work overtime. The question that needed to be answered was whether the instruction was lawful, and in effect, whether the employees’ refusal amounted to insubordination. The CCMA held that when their manager instructed them to work overtime, none disagreed. Because of this, the Commissioner found that it created an implied or tacit agreement[3], and the employees were therefore obligated to work their overtime, thus making the instruction lawful. The Labour Court ruled that since the clause in the employees’ contracts that referred to overtime work had already expired, the instruction to work overtime was deemed unlawful in the absence of any agreement to work overtime.[4] The Labour Court further held that there was no evidence to support the Commissioner’s finding that an implied or tacit agreement existed. Finally, in answering the question of whether dismissal is an appropriate sanction for insubordination, the court held that if insubordination is the first offence, not accompanied by insolence, and was not wilful, then dismissal is inappropriate and unreasonable. Instead, a progressive disciplinary sanction in the form of a warning or final written warning would have been appropriate.

This is an important lesson for employers to keep in mind, especially those whose businesses depend on overtime work. It is especially important that employers not fall into the trap of forgetting about section 10(5) and renewing their employees’ overtime clause every 12 months, because should they fail to do this, they risk the chance of having no one work a necessary and crucial overtime shift.

WRITTEN BY BRIDGETON PETOORS

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.

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Carla Cloete

Partner | Attorney, Conveyancer & Notary | LLB

Carla obtained her LLB at the North West University, Potchefstroom Campus in 2015. She completed her articles in 2017 with Brits Dreyer Inc in Bellville. She is an admitted Attorney, Notary and Conveyancer. After her articles she relocated to Kimberley where she worked as a professional assistant in the Conveyancing department of Van de Wall Inc. Coming back to her Western Cape roots, she now joins the PP Smit team as a professional assistant.

Carien Hamman

Attorney & Notary | LLB

Carien grew up and matriculated in the picturesque town of Ceres, whereafter she furthered her studies at the University of Stellenbosch and obtained her LLB degree in 2015. She completed her articles at VanderSpuy Cape Town in 2017 and stayed on as an associate litigant after being admitted as an attorney during early 2018. Carien loves the countryside and thus ventured back to Ceres where she joined Joubert Van Vuuren Inc. for a year. However, when she was presented with the opportunity to enjoy both the country- and the seaside, she couldn’t resist and joined PP Smit Attorneys at the beginning of 2022 as an avid litigator. When she is not at the office, Carien enjoys long walks, wine tasting, and exploring the area with her family and friends.

Harmann Potgieter

Attorney | LLB | NQF 7

Harmann graduated in 2018 with an LLB degree from the North-West University’s Potchefstroom Campus. He went on to study and grow in various fields, including doing a course on the Consumer Protection Act and a course at the University of South Africa where he obtained his NQF 7 Certificate in the Administration of Deceased Estates.

Harmann completed his articles of clerkship at Swemmer & Levin under the supervision of Mr Richard Phillips. After being admitted as an attorney in 2020, Harmann continued with PP Smit Attorneys as a professional assistant in the deceased estates department as well as the litigation department. He loves to study, possesses a deep curiosity about the world, and is dedicated to giving back to the community.

Andre van der Walt

Partner | Attorney | LLB

Andre graduated in 2015 with an LLB degree from the University of Pretoria. He later went on to obtain his NQF 7 Certificate in the Administration of Deceased Estates from the University of South Africa, which allowed him to further his career in deceased estates and the drafting of wills and trusts. Andre served his articles at Barnard & Patel Attorneys under the supervision of Mr YAS Patel. After being admitted as an attorney in 2016, he continued working at Barnard & Patel Attorneys as a professional assistant in the deceased estates department.

Andre joined Van Rensburg Attorneys in 2019 and was head of the deceased estates department until 2021. He then received the opportunity to move to the West Coast, where he joined Swemmer & Levin Attorneys, and not too long after that, he grabbed the opportunity to work at PP Smit Attorneys. Andre loves travelling and enjoys the beauty that our country has to offer with his friends, family, and loved ones.

Jandré Smith

Partner | Attorney | LLB

Jandré grew up and matriculated in the small Klein Karoo town of Oudtshoorn. He furthered his studies at the North-West University in Potchefstroom, obtaining his LLB degree during 2015. He completed his articles at Swemmer & Levin in 2017 and was subsequently appointed as a professional assistant. In 2020, Jandré was promoted to the position of director of the firm, where he practices in the Litigation department. Jandré additionally joined the partnership of PP Smit Attorneys during the same year. When not practising law, Jandré is an avid sports fan. He has a passion for nature and enjoys camping, trail running, and mountain biking with his family.

Richard Phillips

Partner | Attorney | Bcom & BProc

After matriculating at Paarl Boys’ High School, Richard completed his BCom and BProc degrees at the University of Port Elizabeth. He served his articles with Van Wyk Fouchee in Paarl and quickly developed an affinity for litigation. Richard has always had a deep love for the ocean and when he was presented with an opportunity he joined the partnership of PP Smit Attorneys during 2006. Richard specialises in general litigation and divorces. When he is not in the office or with his family, he tries to spend as much time as possible in or on the water.

Johann Maree

Partner | Attorney | BA. LLB

Johann matriculated at Oudtshoorn High School and attended Stellenbosch University, where he obtained his BA Law and LLB degrees. Following his studies, he worked for three years as State Prosecutor at the Magistrate’s Court in Cape Town. Johann completed his legal training with the State Attorney in Pretoria and then moved to his hometown, Oudtshoorn, where he worked as a lawyer for a year. In 1983, he moved to Vredenburg and joined Swemmer & Levin, where after he joined the partnership of PP Smit Attorneys during 2006.. When he is not in the office, Johann enjoys cycling and in his earlier days, he used to be a long-distance junkie.

Pieter Smit

Partner | Attorney & Conveyancer | BA. LLB

Pieter obtained his BA Law degree from Stellenbosch University in 1995 and his LLB degree from the North-West University in Potchefstroom in 1998. He served his articles at Marais Muller Attorneys from 1998 to 1999 and was admitted as an attorney in 2000 and as a conveyancer in 2002. Pieter is the founder of PP Smit Attorneys, which opened its doors in 2004. He also became a director of Swemmer & Levin in 2006. Pieter loves the outdoors and participating in all forms of sport, including tennis, golf, fishing, spearfishing, scuba diving, and hiking.

Jan Fourie

Partner |  Attorney, Notary & Conveyancer | BA. LLB

Jan graduated in 1974 with a five-year BA LLB degree from the University of Stellenbosch, whereafter he was admitted as an advocate and prosecuted as such in the Cape Town and Wynberg Courts. In 1974, he joined Swemmer & Levin as the Candidate Attorney of Mr Levin (founding member) and was admitted as an attorney on 7 April 1976, as a conveyancer on 11 January 1978, and as a Notary on 19 December 1984. Since 1974, he has served in various committees, including the West Coast Chamber of Commerce, the Vredenburg School Committee, and the Malgas Lions Club. In 2004, he also joined the partnership of PP Smit Attorneys.

Furthermore, Jan was the author of the first bilingual law book, The New Debt Collecting Procedures (Die Nuwe Skuldinvorderingsprosedures), which was used by all the Magistrate Courts throughout South Africa. With the founding of the Small Claims Court in Vredenburg, Jan served as one of the first Commissioners.