Michael Mandikonzwa & 2 Others v Boka Tobacco Auction Floors

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/712/2014
HARARE, 14th OCTOBER, 2014
CASE NO. LC/H/566/13
AND 24th OCTOBER, 2014
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IN THE LABOUR COURT OF ZIMBABWE            JUDGMENT NO. LC/H/712/2014

HARARE, 14th OCTOBER, 2014    		            CASE NO. LC/H/566/13

AND 24th OCTOBER                , 2014

In the matter between:-

MICHAEL MANDIKONZA & 2 OTHERS			Appellants

And

BOKA TOBACCO AUCTION FLOORS				Respondent

Before The Honourable F.C. Maxwell, Judge

For Appellants 		- 	Mr P. Kunguma (ZFTU)

For Respondent		-	Mr A.  Vokoto (Company Representative)

MAXWELL J:

Appellants were employed by Respondent in April 2011 as guards. Their contracts of employment were termination with effect from 30th June 2012. On 30th July 2012 Appellants approached the NEC appealing against unlawful dismissal/termination of  contracts. The Grievance and Disciplinary Committee held that Respondent did not follow proper termination procedures and ordered their reinstatement without loss of salary and benefits with effect from date of unlawful termination.

On 15th August 2012 Appellants filed a claim for unpaid overtime and public holidays. The Grievance and Disciplinary Committee ordered that the outstanding overtime be paid in terms of the Collective Bargaining Agreement. The decision of that Committee dated 5th September 2012 was issued on 4th October 2012. On 5th December 2012 Appellants made an application for quantification of unpaid overtime following an alleged non-compliance with the Order of 5th September 2012. Respondent was given up to 30th April 2013 to pay the outstanding overtime worked. On 10th May 2013 Appellants wrote a letter to NEC indicating that the Respondent had only paid half of what they were claiming. They claimed that they worked for 5 days a week instead of 4 days a week and therefore the overtime should be calculated at double time not 1.5 times the ordinary rate. The NEC requested for and was supplied with the schedules used to pay the Appellants’ outstanding overtime. In their determination they stated;

“1.	The contracts of employment signed by the appellants clearly state that they were supposed to work for five days in a week, therefore any time worked within the five days which was in excess of 48 normal hours should be treated as overtime and should be calculated at 1.5 times the current hourly wage in terms of Clause 9 of SI 85 of 1993.

2.	Any overtime worked in a day off or on an individual holiday shall be paid at double the current hourly wage of each employee.

3.	…….”

On 29th July 2013 Appellants appealed against the determination of the NEC. The ground of appeal is simply that the NEC erred in ruling that overtime worked on a day off shall be paid at time and a half hourly wage of Appellants. Respondent submitted that the NEC’s determination was correct as the Appellants’ contracts of employment clearly stated that they were supposed to work five days a week. The issue before the Court is whether or not the overtime claimed was on off days or during working days. S.I. 85 of 1993 stipulates that payment of overtime on off days is at double the current hourly wage of the employee whilst that for overtime in excess of the stipulated working hours is at one and a half times the current hourly wage of the employee.

It is not in dispute that Appellants worked 5 days a week. Appellants claim double the hourly wage for the fifth day as S.I. 85 of 1993 in Section 5(2) stipulates that the hours of work for guards shall not exceed forty-eight hours per week. Their argument is based on the fact that since they were working from 6.00 am to 6.00 p.m. every day, 48 hours for the week would be accomplished by the 4th day. The 5th day in their view should be a day off and therefore should be paid at double the wage rate for each.

In my view there is merit in the Appellants’ submission. It is not clear from which contract NEC based its decision. The contracts on record do not specify the 5-day working week alleged by the NEC. In my view the NEC simply accepted the Respondent’s averment without any proof thereof. That averment is not borne out by the contracts of employment on record. An analysis of the facts on record reveals the following;

The contracts of employment signed by the Appellants state that they were supposed to work from 6.00 am to 6.00 pm daily, a total of 12 hours.

Section 5(2) of SI 82/93 stipulates the working hours for guards as not exceeding forty eight hours per week. Considering that the Appellant were working twelve hours a day, within four days they would have worked the maximum hours allowed under SI 85/93.

The same SI also stipulates that the ordinary hours of work shall not exceed ten hours in any period of twenty-four hours. It follows that the Appellants were working two hours overtime on a daily basis.

Considering that the maximum hours per week were accomplished on the fourth day, any fifth day per week worked would be overtime on a day off.

There is therefore merit in the appeal. Accordingly points one and two of the determination of the NEC are set aside and substituted with the following;

Any fifth day per week worked by Appellants should be treated as overtime on a day off and be calculated at double the current hourly wage for each Appellant.

Any time worked in excess of the stipulated ten hours per day within the four days per week should be treated as overtime and calculated at 1.5 times the current hourly wage for each Appellant.

Parties are to agree on the amounts outstanding within 30 days of this order, calculated as above, failing which either party can approach this Court for quantification.