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Are your employees working through the festive season? Watch out! You could land up at the CCMA!

by , 15 December 2015
The mayhem of the festive season is here! And I have no doubt you'll need employees to put in a few extra hours to help you get through everything you need to before the silly season is over.

But you're not worried... You've got yourself covered with your employees' contracts. They're bound to help you. But wait! Before you start enforcing your legal rights, make sure you don't make the same mistake House & Home did in the case below...

Let's look at the case South African Commercial, Catering and Allied Workers Union obo Mookamezi and others/House & Home (A Trading Division of Shoprite Checkers (Pty) Ltd) - (2014) 23 CCMA 8.18.4.

Make sure your dismissals are substantively fair

The facts are as follows:
  • House & Home dismissed employees because they wouldn't work adjusted hours during the festive season. Even though their employment contracts included a clause that said they must.
  • The employees said the dismissal was unfair because House & Home didn't consult them on the new working hours. And they had already given them a final warning.
  • They also said their treatment in terms of the dismissal was inconsistent.
     
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For example, if five of your employees work 10 hours of overtime after 5pm this week and their total hourly rate is R565.50, you'll be required to pay them one and a half times this rate.

And that means this month, you'll spend a total of R42 412.50 in overtime for these employees this month alone...

But just because your employees work overtime, doesn't mean you have to pay them for it...

Here's why...
 
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What did the court decide?
 
  • The Commissioner said it was clear the employees were in breach of their contracts when they wouldn't work the new hours.
  • So they were in breach of a valid rule of employment, which they knew about.
  • There was no evidence of inconsistency.
  • But, when looking at the actual dismissal, the Commissioner said there was no evidence the employees damaged the working relationship beyond repair.
  • He said the employer should give the employees warning that their working hours were going to change.
  • The employees said they'd have trouble with transport, and asked House & Home to help with taxi fares.
  • House & Home didn't prove it had suffered loss because of the employees not working overtime.
  • So the dismissals were substantively unfair.

House & Home had to reinstate the employees with three months' back pay.

 
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***

So… What can you learn from this case?

Before you just dismiss employees for insubordination and failing to follow a reasonable instruction during the festive season, cover the following ground…
  • Even if your employment contracts provide for overtime and a change in working hours, make sure you give employees notice of when this will happen.
  • An employee's refusal to work new hours or overtime must damage the employment relationship beyond repair for it to be grounds for dismissal.
  • If the hours are outside of 'normal' working hours, you need to make sure there is transport available to employees.
  • You must be able to prove you'll suffer financial loss if employees don't work the new times.

If you plan on asking employees to work overtime or change your operating hours, just make sure you don't spring it on them. Give them fair warning and discuss it with them. See if you can help employees where necessary with transport etc.
 


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