On many occassions employers require employees to work overtime due to an increase in production, to meet order deadlines, etc. or due to various other operational requirements. On many occassions employees refuse to work the required overtime. In fact, many times employers find themselves in situations when employees always refuse to work overtime.
What can an employer do when employees always refuse to work overtime?
The reality is, if an employer does not have an agreement with its employees to work overtime, it would not be easy to deal with them if they refuse to work overtime. Overtime is voluntary and employees have the right to refuse.
There is at least one case (SEAWUSA v Trident Steel (1986) 7 ILJ 86 (IC)) where the court held that an employer can dismiss employees who persistently and unreasonably refuse to work overtime. That is even if there is no contractual obligation to do so. This means, employers can treat a case where employees would not, or cannot work overtime when the employer need them to as one concerning its operational requirements. Employers must consult with them on possible alternatives.
For example, employees who refuse to work overtime could be transferred to other positions where they do not have to work overtime. If this does not work, those employees could be retrenched. The employer can then hire new employees who will work overtime (and who agree to do so in their contract of employment). It must be noted that employers MUST have a valid reason when retrenching employees, i.e. there must be sound operational reasons justifying the need for employees to work overtime. If not, the employer would face legal consequences.
Therefore, not having an overtime agreement makes things harder for an employer. It is recommended that employers have a clause in their employment contracts. It must state that the employees agree to work overtime when required to do so. Employees will be in breach of contract if they refuse to work overtime and disciplinary action could be taken against them.
Employees should be warned about the penalties (disciplinary sanctions) they may face if they refuse to work when there is an agreement.
A clause could be included in the disciplinary code that states, for example: ‘If you refuse to work overtime in accordance with what is agreed in your employment contract, it will be regarded as misconduct’. Employers must ensure that employees are aware of the code and give them a guide on what disciplinary sanctions would be imposed if they refuse. It should be made clear that for this form of misconduct, a written warning would be given for the first offence, a final written warning for a second offence and dismissal thereafter. In addition, employees must be told that more serious disciplinary action could be imposed sooner because of the nature of the business and the importance of overtime to the business operations.