MRL3702

Student number:54929482

ASSIGNMENT 2

Question 1

• Porschee and Roy's case could stand in court due to the following reasons:

According to section 10 (1 )(a) of the Basic Conditions of Employment Act (No. 75 of 1997) an employer
may not require or permit an employee—
-to work overtime except in accordance with an agreement.

Therefore, because DM does not have an agreement with Porschee and Roy 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.

Every employer in South Africa must regulate the working time of each employee; with due regard to
the family responsibilities of employees.

DM cannot force Porschee and Roy to work overtime because all forced labour is prohibited in terms of
section 48 of the Basic Conditions of Employment Act and should the employer require such employees
to work overtime, then the hours to be worked and the basis of compensation will have to be
negotiated between the two parties.

Not having an overtime agreement makes things harder for an employer. Things would have been easier
for DM if it had a clause in its employment contracts which stated that employees agree to work
overtime when required to do so. That way, employees will be in breach of contract if they refuse to
work overtime and disciplinary action could be taken against them.

With regard to the above mentioned, it can furthermore be argued that it would not be substantively
fair to dismiss Porschee and Roy.

• In SEAWUSA v Trident Steel (1986) 7 ILJ 86 (IC) 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. Therefore,
because DM had an increased demand of milk which required Porschee and Roy to work overtime, DM
could argue that it could dismiss Porschee and Roy on basis of operational requirements.

DM could furthermore argue that Porschee and Roy unreasonably refused to work overtime with
reference to the needs of the workplace and business. Porschee and Roy's refusal to work overtime will
have a negative effect on the business since they are two of the three employees who are trained
milkers and are able to operate the company's technology, therefore the company will be unable to
meet the increased milk demand. Lastly, due to a new client and the increased demand of milk, DM's
business requirements are such that changes must be made to the employee's terms and conditions of
employment.