IN
THE INDUSTRIAL RELATIONS COURT OF MALAWI
PRINCIPAL
REGISTRY
MATTER
NO. IRC 13 OF 2002
BETWEEN:
MR
MANUEL SOKO …………………………………….. APPLICANT
-and-
CHIBUKU
PRODUCTS LTD …………………………. RESPONDENT
CORAM:
R.
ZIBELU BANDA (Ms.) DEPUTY CHAIRPERSON
Manuel
Soko, Applicant
Olex
Dzimba for Respondent (Personnel Officer)
Ngalauka
Court Clerk
J
U D G E M E N T
Withholding
wages for overtime work; normal working hours form part of contract of
employment.
FACTS
The
applicant commenced this action on 9th January, 2002 claiming One
Hundred Fifty-Five Thousand Two Hundred, Ninety Eight Kwacha and thirty tambala
(K155, 298.30) comprising money earned in excess hours worked for the
respondents during a period from November 1998 to December 1999.
He informed court that he commenced employment with the respondents on 2nd
February 1995 as Sales Representative. His services were terminated
on 29th February 2000. At the time of termination of services he had
risen through the ranks to position of Distribution Manager, earning a basic
salary of K6, 593.00 from K1, 240 when he was first employed.
Terms
and conditions of contract of employment between applicant and the respondent
were expressed in a document tendered by the applicant as exhibit “AP1”
entitled:
“JUNIOR STAFF CONTRACT.” However, the respondents denied that
this document formed the contract. They contended that the applicant had risen
through the ranks to managerial position as per exhibit “RP5” being a letter
of promotion from the respondents to the applicant entitled: “PROMOTION:
DISTRIBUTION MANAGER.”
The
applicant submitted that the promotion did not come with express terms and
conditions for that job other than a revised salary to K5733.00 per month. He
therefore, felt that he was guided by “AP1”. In that document the applicant
singled out the section on “SALARY: normal hours of work”. It is on the basis of this
section that he claims overtime.
The
first observation is that “AP1” was a contract of employment for a Sales
Representative. At the time of termination of services the applicant was not a
Sales Representative but a Distribution Manager. Therefore he could not have
been governed by “AP1”.
The
second observation is that the applicant on his own admission never claimed
overtime since becoming Distribution Supervisor in Bantered in November 1998. He
informed court that his immediate boss a Mr. Mvula had advised him that he could
not claim overtime because he was not entitled. There was nothing to show that
the applicant was dissatisfied with that advice. He continued work and never
claimed any overtime until the termination of his services in February 2000. The
applicant could not produce in court any form or official document from the
company indicating or verifying his claims for either ordinary overtime, day off
overtime or holiday overtime. He tried to show that he had this information in a
personal diary, which, was missing, the court found this assertion rather far
fetched.
In
countering the applicant’s assertions on overtime entitlement, the respondents
produced two memorandums under subject: “MAXIMUM
SALARY FOR OVERTIME,” dated 10th September, 1998, marked as
exhibit “RP1” and another headed: “MAXIMUM
SALARY FOR CLAIMIMG OVERTIME,” dated 29th December, 1999
exhibited as “RP2”.
In
the first memorandum the maximum salary for claiming overtime was K3231.25.
The respondents explained that all employees were advised through Operation
Managers that those who got a basic salary of K3231.25 and above were not
entitled to overtime allowance. During this period the applicant’s salary
stood at K4, 009.00 as per exhibit
“RP3’. This exhibit was a salary increment advice from the Personnel Manager
to the applicant, dated 1st October 1998. It should be remembered
that the applicant’s claim for overtime is for period from November 1998 to
December 1999. During this period as can be seen from “RP1” and “RP3”
(there was no evidence to the contrary) the applicant fell outside the
overtime entitlement category.
In
the second memorandum the maximum salary for one to claim over time was K5,
545.00 per month effective 1st January 2000. It was produced and
exhibited in this court “RP5”, a document, showing that prior to this
memorandum the applicant was holding the position of Distribution Manager and
earning a salary of K5733.00 per
month.
This
court did not believe the applicant’s allegation that he never got or saw
“RP1” and “RP2”. If the applicant believed that he was entitled to
overtime he would have claimed it using the normal channels that everybody else
used at the company. It is because he knew that he was not entitled that he
never took any steps to claim overtime allowance when he was so employed.
THE
LAW
The
Employment Act 2000 states in section 36(1) that:
“An
employee’s normal working hours shall be set out in the employment
contract.”
It
is therefore the duty of parties to a contract of employment to set out clearly
the express terms of a contract of employment including normal working hours. It
was submitted that the only time, terms and conditions of service of the
applicant were mentioned in documentary form was when he was Sales
Representative. This prompted the applicant to think that he could select the
terms and conditions that were to his advantage from this contract and use them
against the respondents. However,
the legal position is that the employer is not under duty to set out each and
every term of contract of employment in a document. The legal obligation is
limited to issuing a written statement containing particulars of the main terms
and conditions of employment. Employees do not have to sign this document. (See
section 27(1) of the Employment Act 2000.)
The
fact that there was written regulation on overtime formed an express term of
contract regarding overtime pay. It was not necessary for the respondents to
draw up a formal contract of employment with the applicant to express that
particular term. It was enough that there were written statements in the form of
memorandums from now and again advising employees on changes in overtime
entitlements. It was up to the applicant to negotiate with management if he felt
aggrieved with the condition regulating overtime.
It
is said in the Law of Employment: Practice and Analysis (1998) that:
“Hours
of work will be in accordance with the contract of employment. Usually this will
provide for some normal or standard number of hours per week, beyond which hours
constitute overtime. The rate at which overtime is paid, is, like ordinary pay,
not governed by legislation. Rather it is a matter of contract. The test of
whether overtime is contractual is whether the employer must provide it and the
employee must work it.”
This
view echoes the spirit of our law in section 36 of the Employment Act 2000
quoted above.
Evidence
of whether the respondent provided overtime to the applicant would have been in
the form of authorization. The respondent submitted in court the procedure for
overtime at the respondent’s company. Authorization was crucial before one
could claim overtime. Head of Department or Supervisor would issue authorization
where necessary. The authorization had to be documented, for purposes of
calculating off time hours or pay in lieu thereof. The applicant had at one time
during his term of employment with the respondents been entitled to overtime and
he followed a procedure as laid down by the respondents. This court cannot
entertain his assertion, therefore, that he was in the dark.
FINDING
The
conclusion of the court is that the applicant was aware of the position on
overtime at his work place. The employer did all it could to inform employees
including the applicant the position on overtime allowance as amended from time
to time. This was enough notice to all. The burden was on the applicant to
question that position when he had the time during his term of service. The
court finds that the applicant was not entitled to overtime and hence his claim
for K155, 298.30 must fail in its entirety.
Pronounced
in open court this 1st day of October 2002 at LIMBE.
R. Zibelu Banda (Ms.)
DEPUTY CHAIRPERSON