Employment law update – Does a refusal to work overtime constitute insubordination?

July 1st, 2023

In 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), four employees, employed by Andru Mining (the Company), were dismissed for gross insubordination for refusing to obey an instruction from their site manager to work two hours’ overtime. The employees’ normal working hours were from 6am to 4pm, and they were instructed to work overtime from 4pm to 6pm on a particular day to meet production targets. The employees did not agree to work overtime.

Disgruntled with the dismissal of the employees, the Association of Mineworkers and Construction Union (AMCU) referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). The CCMA arbitrator found that as the employees did not object to working overtime when informed of the instruction, this amounted to an implied or tacit agreement. Further, the employees had already agreed in their employment contracts to work overtime as and when required. Accordingly, the arbitrator ruled the dismissals fair.

On review to the Labour Court, AMCU contended that the employees did not agree to work overtime due to safety issues and thus could not have been guilty of gross insubordination as the instruction to work overtime was unlawful. The Company, on the other hand, contended that the employees were bound by their employment contracts to work overtime on request, and none of the employees had objected when the request was made.

The issue before the court was whether the Company had proved the charge of insubordination. Section 10 of the Basic Conditions of Employment Act 75 of 1997 (BCEA) provides, among other things, that employees may not be required or permitted to work overtime except in accordance with an agreement. Further, an agreement to work overtime, which is concluded at the commencement of the employee’s employment, or during the first three months of employment, lapses after one year. The Company was thus required to prove that there was an agreement to work overtime to validate the instruction.

In respect of the four employees, it was noted as follows:

  • The employment contract of one of the employees contained an agreement to work overtime, which employment contract was only a few months old.
  • The employment contract of another employee did not, however, contain an agreement to work overtime.
  • While the employment contracts of the remaining two employees did contain an agreement to work overtime, such agreement was entered into at the commencement of their employment and had since lapsed prior to the instruction being issued.

In the absence of an agreement to work overtime on the day in question, the court found that the instruction from the site manager in respect of three of the four employees was unlawful as it was in breach of the BCEA.

The court noted that whether a refusal to obey an instruction amounts to insubordination depends on various factors, including whether the instruction was reasonable. In this regard, an unlawful instruction cannot be considered reasonable. There was no evidence that supported the arbitrator’s finding that were was a tacit or implied agreement to work overtime. In the court’s view, an agreement as contemplated in s 10 of the BCEA could only be inferred when an employee had worked overtime without prior consent. Otherwise, an employee would be under no obligation to work overtime. Accordingly, the finding that three of the employees were guilty of gross insubordination was unreasonable.

While the instruction was lawful in respect of the one employee who had agreed to work overtime in his contract of employment, which agreement was still valid, the court was required to consider the reasonableness of the finding that the employee was guilty as charged and the appropriateness of the sanction of dismissal.

It was common cause that the employee was aware that he had to work overtime but failed to comply with the instruction. As regards the appropriateness of the sanction, it was conceded that the employee had never refused to work overtime prior to this particular incident, and it was only two hours of overtime that was lost. Although the Company sought to use the loss of production to justify the sanction of dismissal, there were no details provided of the production lost nor the costs thereof.

The court held that an inquiry into the appropriateness of the sanction entails an evaluation of the totality of the circumstances. Acts of insubordination do not justify dismissal unless they are serious and wilful. Further, the Code of Good Practice: Dismissal deems it inappropriate for an employer to dismiss an employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship intolerable.

In the present case, the arbitrator failed to apply his mind to the fact that the insubordination was the employee’s first offence and there was no evidence that the employee acted wilfully and repeatedly. A progressive disciplinary sanction in a form of a warning would have been sufficient. It followed that the sanction of dismissal in respect of the one employee concerned was unfair.

The arbitrator’s award was thus reviewed and set aside. The court substituted the award with an order that the dismissal of the employees was substantively unfair and that the Company reinstate the employees with retrospective effect.

Nadine Mather BA LLB (cum laude) (Rhodes) is a legal practitioner at Bowmans in Johannesburg.

This article was first published in De Rebus in 2023 (July) DR 33.