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Applicant – Present

Respondent – Present (Represented by Counsel Limbe)

Mr. George Kalulu – Official Interpreter

J U D G M E N T

The Applicant has brought this matter against the Respondent on a trade dispute of withholding overtime dues. The Respondent in their response to this claim have denied the Applicant’s assertions.

EVIDENCE

The Applicant, a truck driver by profession, was employed by the Respondent in the year 1978. He served the Respondent at various grades as a driver and he even drove the Chief Executive of the Corporation. The Applicant retired on 16^th of March 1998. He was however recalled to work on a month-to-month basis. During the period he was taken on month to month, he was assigned to drive a truck with the Respondent’s officials to perform tobacco and pigeon peas mobile buying in outstations rural markets. The exercise the Applicant stated was too involving. They had to leave their homes at a very odd hour may be 5.00 a.m. They would knock off at very odd hours like 12.00 midnight. As a result of this special assignment, he had not time to rest and he accumulated 1502 excess hours of overtime. The Applicant told the Court that his bosses had authorized these hours and signed for them. The hours were even certified for payment. The Applicant tendered in Court excess overtime sheets as evidence that they were indeed certified by his superiors. The Applicant told the Court that at that time the Respondent had issued out a circular on overtime. This circular had put a flat rate for drivers, which stipulated grades of truck drivers to be at K2,000 per month. Thus even if one clocked hundreds of hours, he would only be paid the flat rate of K2,000 per month, which was equivalent to 86 hours.

The Applicant told the Court that when the month-to-month contract was over, he approached the Respondent’s Management so that he should be paid for the excess hours. He was at first referred to this and that office. Finally, the Assistant General Manager minuted that he be paid. But when the documents were referred to accounts, they were sent back because the accounts section saw no justification for such a payment in view of the standing circular on overtime. Finally, Management only approved excess overtime hours for which he had been on duty in Mangochi. The Applicant said that he was not satisfied with Management’s decision only to pay him for the Mangochi trips because mobile buying was a special exercise by the Respondent and that he deserved to be paid. He further said that he should have been give off days for the excess hours if at all the Respondent knew that they would not pay for these excess hours. But since he had now finally left work with them, there is no way he could be compensated apart from them paying for these excess overtime hours. The Applicant said that even the Assistant General Manager who was responsible for mobile buying spoke to Mrs. Mang’anda that he should have been given off duty for these excess hours but that it was too late. The Applicant said that since the same office paid him for the excess hours in January and February 2000 when he was in Mangochi, he saw no justification as to why they were declining to pay for these other excess hours.

The Respondent also gave their evidence through Mr. Ausward M.K. Kibombwe the Assistant Human Resources Manager. He stressed the point that the Respondent had a policy in place on overtime payment as stipulated in the circular. The ceiling was K2,000. One could only be paid for excess overtime if the General Manager had authorized it. As for the claims which the Applicant is making here, they were not authorized and he cannot be paid excess overtime allowance.

THE LAW

The matter herein arose and involves periods before the Employment Act came into force in the year 2000. I have thus based my legal interpretation on the Republic Constitution in particular Section 31 which provides:-

"Every person shall have the right to fair and safe labour practices and to fair remuneration."

The Term fair labour practice has not been codified in any of our statutes on labour and employment law. It is thus the duty of this Court to give meaning to these words so that the future generation has points of reference.

In analyzing the evidence I shall therefore also be marrying it to this issue of fair labour practice and fair remuneration.

ANALYSIS

The evidence on record clearly shows that the Respondent had put in place a circular on overtime. Any excess hours were not paid for apart from the maximum K2,000.00. Evidence from the Respondent has clearly revealed that the discretion was upon the General Manager or Assistant General Manager to authorize if excess hours had to be paid for. In the present case, administration did not although they finally authorized for only two months in the year 2000. The Applicant impressed the Court as a man of truth. He worked at odd hours on the mobile buying scheme. He was on month-to-month and Management knew that very well. The Applicant was not given any chance by the Respondent to go on off duty in order to utilize his excess overtime hours. This Court found that it was a very unfair labour practice on the part of the Respondent to deny the Applicant the opportunity of payment for the excess hours. If he was still in the system, they should have sent him on off duty in order to utilize the hours. But it is now too late. Even the Assistant General Manager queried the administration as to why this man was not given the chance to go on off duty. The Applicant was thus unfairly treated by the Respondent. The Respondent were involved in what one would now call unfair labour practice.

CONCLUSION

Having found that denial for payment of excess overtime hours in the present circumstances would amount to unfair labour practice, I do order that the Respondent should with immediate effect pay for the excess hours that the Applicant is claiming for. The Registrar of the Industrial Relations Court to assess the exact amount.

DELIVERED this ----------- day of May 2002 at Limbe.

M.C.C. Mkandawire