MISCONDUCT - REFUSAL TO WORK OVERTIME WITHOUT A VALID REASON

This form of misconduct could also be regarded as insubordination. If the employee agreed to work overtime and then did not arrive as agreed, that would lead to a charge of unauthorised absenteeism.

What to look for:

Establish whether there had been previous problems of a similar nature with the employee in question – i.e., despite the fact that they are given reasonable notice of the required overtime, they refuse to work it, often without a valid reason. From this, you may be able to establish that this employee consistently refuses to work overtime and is therefore unsuitable for employment in a company where overtime is necessary, or the requirement for it is part of the job.

Find out whether the excuse given is valid or not.

Establish any cost to the employer – such as having to hire casual labour, etc because of the employee’s unwillingness to cooperate. Establish what the employment contract states – The employee may have been contractually bound to work overtime when required.

Establish that the request to work overtime was a lawful and reasonable request. Establish that the employee was given adequate notice of the acquired overtime.

What must the investigator prove at the disciplinary enquiry?

Put forward all the evidence gathered, to show that the notice given was reasonable, to show that the employee had no valid reason to refuse to work the overtime, to show that overtime is necessary, or that they were contractually bound to work the overtime, or to show that the employee may not be suitable for employment in a company where overtime is part of the job. Show that their refusal to work overtime resulted in a loss to the company, in terms of the job having been done or perhaps in terms of the company having to employ casual labour.

If there is a previous disciplinary history for similar offenses, then produce that as well.

Note: Where an employee is contractually bound to work overtime, the employer on an annual basis needs to, in writing, reaffirm the operational requirement to work overtime, and the employee accepts the contractual obligation to work overtime. Without such written reaffirmation, the employee cannot be deemed contractually obligated to work overtime if and when the need arises. Then there is no agreement and overtime requires agreement between the parties to the contract.