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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. We look at three new cases in this newsletter: the first deals with a refusal to work overtime. The second deals with the relevance of prior individual warnings in cases of collective misconduct. The third deals with the use of a SMS to accept a contract of employment.

In our article we look at the problems arising with employees who suffer from mental health disabilities, depression and breakdowns.

This public newsletter is a free edited version of the Worklaw subscriber newsletter.


Can you require an employee to work overtime?

Although there was no written contract of employment, it was the employer’s standard practice to require all employees to work overtime on Saturdays. When presented with the roster of Saturday work for the following year, the employee said that he did not wish to work overtime as he wanted to study on Saturday mornings. He was told that he had to work and that there were no exceptions. When work resumed in January, he did not return to work. On 12 January the director spoke to him and said that he had to leave if he was not prepared to work on Saturdays, Sundays and public holidays. The employee claimed that he had been constructively dismissed. The employer said that he had absconded.

The case is Lepadima v Progress Guttering (Pty) Ltd (2008) 29 ILJ 199 (CCMA). At the CCMA it was held that the employer had contravened s 10 of the BCEA which provides that overtime may only be worked by agreement, and that such an agreement lapses after a year for a new employee. It was held that the evidence showed that the employee had been dismissed in terms of s 186(e) of the LRA because the employer had made continued employment intolerable for him.

Section 10(1) of the BCEA says that an employer may not require or permit an employee to work overtime except in accordance with an agreement. Section 10(5) says “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”. What seems clear is that this provision exists to protect a vulnerable new employee from agreeing – at a time when s/he has no bargaining power – to work overtime for the rest of their lives. It allows a re-negotiation one year later.

It is however important to note that this section does not say that overtime cannot be regulated indefinitely by a collective agreement. The section also does not say that after one year of employment the parties can’t agree to an indefinite overtime arrangement. In practice, what is likely to happen in most cases is that if a new employee agreed initially to work overtime, that arrangement will just continue thereafter beyond the initial one year period. Bearing in mind that the agreement contemplated in section 10(1) can be verbal, it will probably be implied by the employee's continued overtime working and the established practice, that he/she has agreed to continue to work such hours. The employee would then have difficulty in attempting to withdraw that agreement at a later stage.

In the Progress Guttering case the employee had only been employed for a year, so the award was correct. But this case should not be read to mean that every year an employer has to renegotiate overtime with employees who have been working overtime on a regular basis. The continued refusal of an employee to work agreed or normal overtime may well justify dismissal.

The relevance of prior warnings in cases of collective misconduct

The applicants were bus drivers who had all been dismissed by the company for striking. The basis on which the individual applicants were selected for dismissal was central to this case. The company’s case was that despite the chairperson’s recommendation, it did not wish to dismiss all the drivers. There was evidence that there was a shortage of drivers in the transport and freight sectors, and that the company had to consider the losses it would suffer if it were to implement the recommendation that all of the drivers who participated in the strike be dismissed. The company’s management elected to review the disciplinary records of those employees who had been found guilty of misconduct, and to dismiss only those whose records reflected final warnings for prior misconduct.

The company also decided to dismiss the shop stewards, none of whose records disclosed final warnings. It did so on the basis that they had made a commitment at a meeting that the industrial action would stop, and that the breach of their commitment had compromised the relationship of trust between them and the company.

These were the facts in SATAWU on behalf of others v Ikhwezi Bus Service (Pty) Ltd (LC). The employees argued that their dismissal was unfair since it had been effected in breach of what has become known as the ‘parity principle’ This principle, expressed broadly, requires that workers who engage in the same misconduct should be treated alike. Expressed more narrowly, it means that it is not justifiable for an employer to refuse or fail to distinguish between individual and collective misconduct when administering discipline.

The issue to be decided in this case was as follows: is it legitimate for an employer to draw distinctions between employees, as the company did, on the basis of warnings issued in respect of prior individual misconduct when a sanction for collective misconduct is under consideration?

The Labour Court held that an employer is entitled in general terms to impose different penalties on different employees for the same act of misconduct, provided there is a fair and objective basis for doing so. When an existing disciplinary record is the differentiating factor, prior disciplinary action short of dismissal (in particular, warnings) can be relevant. If the disciplinary record of one employee discloses prior disciplinary action, this can be taken into account when the employer decides on an appropriate sanction. This means that in general terms, the nature and extent of prior sanctions can legitimately form the basis of a differentiation in penalty, even when the nature of the misconduct differs.

The Labour Court held however that an exception applies when the employer considers an appropriate sanction for misconduct that is collective in nature. Here prior disciplinary sanctions for individual misconduct cannot be used to justify a differentiation in penalty. The employer has no choice but to impose the same sanction in respect of all employees engaged in the collective misconduct. However commercially compelling the considerations may be at the time, they are not a legitimate basis on which to select for dismissal only those employees whose disciplinary records disclosed final warnings for acts of misconduct.

Using SMS and e-mail to accept an offer of employment

Does acceptance of an offer of employment sent by e-mail or short message service (SMS) result in a valid contract? When is an acceptance of an offer sent by e-mail or SMS received? Is an SMS an electronic communication? What is an electronic communication? These were the issues to be decided in Jafta v Ezemvelo KZN Wildlife (Labour Court 1 July 2008). To answer these electronic commerce or e-commerce questions the court looked at the Electronic Communications Transactions Act No 25 of 2002 (ECT Act).

Here were the facts: J, an applicant for employment, responded to a job advertisement. At his job interview Wildlife offered J the position of General Manager: Human Resources. He explained to his interviewers that he would be on leave from 22 December 2006 to 8 January 2007, that he was obliged to give two months notice to resign to his employer, the Eastern Cape Parks Board (ECPB), and that he would only be able to give such notice after he returned from leave.

Wildlife’s Human Resources Officer e-mailed the job offer to J on 13 December 2006. J wanted to accept the offer but with a later commencement date of his contract. Wildlife wanted him to start working on 1 February 2007. He did not want to leave ECPB without giving proper notice.

J was about to go on leave when he received the offer on 13 December 2006. On 28 December 2006 he received by e-mail a letter dated 27 December 2006 urging him to respond to Wildlife’s offer of employment by the end of December 2006. The Chief Executive Officer of Wildlife, the author of the letter, emphasized that the commencement date of the contract was non-negotiable.

J e-mailed his response on 29 December 2006 at 7:51pm. Wildlife denies that it received this e-mail. On 29 December 2006 J received an SMS stating the following: “Due to operational requirements of EKZNW the GMHR must start on 01/02/07. Failing to confirm the offer will be given to the next candidate. Pls respond. Cynthia”.

J alleges that he replied by SMS as follows: “Have responded to the affirmative through a letter emailed to you this evening for the attention of your CEO. Had problems with email I had to go to internet café”.

It was admitted that the SMS was received but there was no recall of the word “affirmative” in it. It was disputed that the SMS amounted to an acceptance of the offer. It was understood as being no more than a communication to inform her that J had e-mailed his response to her offer of employment.

The issues for determination were the following:

  1. Was the content of J’s e-mail an acceptance of Wildlife’s offer of employment?
  2. Was the content of J’s SMS an acceptance of Wildlife’s offer of employment?
  3. Is an SMS a proper mode of communicating acceptance of an offer?

The Labour Court answered all three questions in the affirmative because the employer used e-mail and SMS to communicate offers to the applicant. The Court implied that there would have been a different outcome if the employer had used more conventional modes to communicate with the applicant.

The lesson here is to realize that e-mails do disappear into ‘cyberspace’ even though it appears they may have been ‘delivered’. Also, SMS-speak is often cryptic (and misunderstood) and the message easily erased. We are not saying that in the modern technology driven era, you should avoid e-mail or SMS communication. But we do suggest perhaps a ‘belt and braces’ approach to avoid misunderstandings arising. When you communicate important information in this way, follow up to confirm receipt or confirm it in writing.


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Bruce Robertson
August 2008
Copyright: Worklaw