I must admit, that as a Labour Law Specialist, even this Labour Court outcome caught me by surprise, and I did not think that I would be so overwhelmed with more questions than answers.
The Labour Court released (13 February 2023) the outcome of a 5-year case between AMCU v Andru Mining (Pty) Ltd, in which 4 employees refused to work overtime, was charged for Insubordination (refusing a lawful instruction) and duly dismissed. The CCMA commissioner found that the dismissal was fair in that they basically agreed in their Contract of Employment to work Overtime.
The Labour Court overturned the award and outcome stating that in terms of the BCEA, S10(5), which states that “An agreement concluded in terms of subsection (1) with an employee when the employee commences employment or during the first three months of employment lapses after one year.”
Yes Management, it lapses after one year of employment. Therefore, no matter how you look at the matter or what transpired, the agreement to work overtime is not applicable and should have been redone for the employees to be held accountable for “insubordination”.
What made the case worst was that the manager was so hot-headed that he did not acknowledge the refusal due to Safety concerns by the staff – which is a legal form of refusal and the stated to the Court that the Company had a loss in production, costing them money. The overtime would have been for 2-hours, and he could not justify the loss to the Court.
The case was never Andru Mining’s to win but AMCU’s to lose, as all these employees did not have any previous transgressions recorded either. This was a manager under pressure and decided that it was time to blame someone else for his lack of control or planning to finish a project on time.
The result? Well, you guessed it – Reinstatement of all 4 staff members with back pay for 5 years.
Is it really worth it, not engaging with specialists like MJSC?
