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R

IN
THE INDUSTRIAL COURT OF BOTSWANA

HELD
AT GABORONE

CASE NO. IC. 285/2003

IN THE DISPUTE BETWEEN

BENJAMIN DESAI & ANOTHER ……………………….
APPLICANT

AND

CONTAINER LIFT (PTY) LTD ……………………….
RESPONDENT

CONSTITUTION
OF THE COURT

M.
EBRAHIM-CARSTENS INDUSTRIAL COURT JUDGE

M.K.
MASHUMBA NOMINATED MEMBER (UNION)

B.O.
TSHEKO NOMINATED MEMBER (BOCCIM)

FOR
THE APPLICANTS

BOTH
IN PERSON

FOR
THE RESPONDENT

PAUL
MORRIS
DIRECTOR

PLACE
AND DATE OF PROCEEDINGS

GABORONE
11^TH JUNE 2005

27^TH SEPTEMBER 2005

28^TH SEPTEMBER 2005

Atypical workers
– Distinction between casual, temporary, and part-time workers’ –
Daily rated employees engaged for specific
task claiming withheld
wages for alleged excessive hours worked (overtime) – respondent
contending employees employed for specified
piece of work at agreed
flat daily rate with no set hours of work.

JUDGMENT

[1] The
applicants, Benjamin Desai and Richard Petrus aver that they were
employed by the respondent as “part time employees”
to dismantle
a mine shaft at Gope Diamond Mine in the Central Kalahari Game
Reserve. They are claiming withheld wages which they
say they are due
for working excessive hours of overtime. The respondent avers that
the applicants were employed at a fixed daily
rate for the specific
job of dismantling the mine shaft over an anticipated period of two
months. The respondent further contends
that the applicants were paid
all their dues after they left without serving notice and before they
completed the job for which they
were hired.

The
Evidence for the Applicants

[2] Both
Desai and Petrus testified. Their evidence is that they were employed
respectively on 2^nd May 2003 and 6^th May 2003,
until 5^th June 2003; at the rate of P70.00 and P56.60 per
day respectively. They alleged that they worked all hours, sometimes
24 hours a day
when they had to load the pipes and steel sheets,
drive during the night to Sejwe, off load thereat, and drive back
immediately.
Desai said his understanding was that the daily rate
covered an eight hour day and any hours worked in excess were
overtime.

[3] The
applicants also said that they prepared a schedule of all the extra
hours they allegedly worked in their short period of employment.
Desai claimed he clocked in a total of 511 hours for which he was due
P4,471.25 of which he only received P2,000.00. Petrus was
said to
have been paid P600.00 for 84.75 hours, when he had allegedly clocked
481 hours for which he should have received P3,405.48.

[4] The
applicants testified that they recorded on a daily basis, and
prepared the schedule of overtime hours on their own initiative
and
not because of any request from their employer. They conceded that
they never presented it to Paul Morris the Director for payment
of
their calculated dues when he allegedly short changed them. They were
unable to give the court an acceptable explanation as to
why they did
not pursue their claim with the employer as they were the only ones
in possession of the details of the alleged overtime
hours.

[5] Desai
testified that after a rest week-end in Lobatse he did not return to
work because he was not happy with the payments made
by Morris.
Petrus told the court that he did not go back because he missed the
ride back to the site. Subsequently he changed his
evidence to say he
did not go back because of the disagreement over pay.

The
Evidence for the Respondent

[6] The
respondent called Paul Morris a Director, Colin Mankape a supervisor,
and Jacob Sebele a driver assistant. All three witnesses
testified
that the dismantling of the mine was a specific one off job payable
at a flat daily rate for completion over an anticipated
period. There
was no provision for overtime but if the job was completed timeously,
the workers were to receive an undisclosed bonus.
The project overran
by one week. All the employees, save for the applicants and others
who left prematurely, received a bonus on
completion.

[7] Morris
testified that he calculated the overall job and time involved and
decided to pay a daily rate which was comparable to
that of De Beers
who had given him the contract for the mine shaft. This took into
account a shift of anything from 9 to 12 hours.
Before embarking on
the project, he sat all the workers down and discussed their
conditions of service for the project. He said the
applicants were
employed as casuals on a temporary basis. Although Desai was employed
at a flat rate of P 70.00 per day, this was
increased to P75.00 per
day after he complained. The workers were to be paid this flat rate
for as long as it took for completion
of the mine dismantling
contract. There was no agreement for overtime as the rates were all
inclusive, being more than double and
treble the usual rate for like
employees. He said there was no necessity for the employees to work
through the night if the applicants
did so at all, and in any event,
they were all given time off in lieu and the necessary rest periods.
They worked irregular hours
and anything from a 3 day to 6 day week,
with days off in between. When gas ran out for instance, Morris would
come into town and
work would cease.

[8] In
his testimony Morris pointed out that by their own admission, the
applicants were employed from about 7^th May to 5^th
June 2003. Less the two days of travelling in and out of the
Kalahari, and rest days taken, the applicants could have only worked
a maximum of 22 days of a 26 day working period. This calculated to
528 total hours (22 days x 24hours), of which Desai said he
worked
511 hours and Petrus 481 hours. This he said illustrated that the
applicants were being opportunistic and untruthful in their
claim of
working such inflated hours. In any event, they were employed on a
flat rate for a specific task and they never drew his
attention to
any overtime claim.

[9] Morris
testified that on the material week-end, all employees including the
two directors headed towards Lobatse for a week-end
rest. On Monday
some employees including the applicants failed to report for duty.
Two weeks elapsed and the whereabouts of Desai
and his colleagues
were still unknown. On making enquiries at the labour office, he was
advised that the applicants owed him two
weeks notice pay in lieu of
notice. Thereafter he met with Petrus, whom he paid the remainder of
his dues. Because Petrus pleaded
with him that he had no money,
Morris only deducted one week’s notice and gave him the benefit of
the other. He said Desai still
owes notice pay in lieu.

[10] The
other two respondent witnesses confirmed Morris’ evidence that
following a week-end break in Lobatse, the applicants failed
to
return to the site at Gope after 5^th June 2003. Mankape
testified that Petrus informed him that he was not coming back
because he was fed up with staying in the bush.
Both these witnesses
also testified that it was rare to work overtime.

Casuals,
part-time and temporary workers

[11] The
applicants were employed temporarily for a specific piece of work at
specified daily flat rates for a short term. In my judgment
in the
matter of Kago Molamu & Another v. Wayguard Security (Pty) Ltd
Case No IC 211/2004, I pointed out that in Botswana we have
insufficient provisions for atypical work forms even though in terms
of
Section 154 of the Employment Act:

“The
Minister may make regulations for any matter required to be made by
regulations or to be prescribed under this Act or for the
better
carrying into effect of the purposes and provisions of this Act and,
without prejudice to the generality of the foregoing,
such
regulations may—

(a)…………………………………………………………………

(b)…………………………………………………………………

(c) prescribe
the circumstances and conditions under which persons may be employed
on a short-term, fixed-term, part-time, temporary
or casual
basis;………………………….

[12] Whilst
there are some provisions in the Employment Act covering contracts
for specified work or for a fixed term, and casual
workers, there are
no provisions or regulations regarding short-term, part-time or
temporary workers. In the Molamu
v Wayguard case at
page 9 of the typed judgment, I said:

‘Apart
from the “Employment (Casual Employees) Regulations” (S.I. 158
of 1984), which are unhelpful in this instance; there
are no such
prescribed regulations. Modern Labour law has seen the rise of a
new genre of atypical work forms like for example;
home work, part
time work, contract work, temporary and short term work. In my view
Regulations or legislation regarding these
types of employment
contracts would be extremely helpful as the law appears unclear and
indeed inadequate, regarding the conditions,
circumstances, rights,
benefits and entitlements of such employees.’

[13] Section
2(a) of the Employment Act Cap 47:01 defines a “casual
employee” as “an employee whose terms of contract
are for a
period of not more than twelve months, and which contains provisions
limiting employment to not more than three days, or
more than
twenty-two and a half hours, work per week.”

[14] There
is no definition in the Employment Act for a temporary or part time
worker. Barker & Holtzhausen (South African Labour
Glossary –
Juta &Co Ltd 1996) – provide the following definitions:

‘- “part-time
employees” Employees performing “part-time work”.

• “part-time
  work” The employment of an individual for fewer hours of work than
  statutory, collectively agreed or usual working hours,
  e.g. morning
  work. Part-time work can be performed on a regular basis and can
  last for an indefinite period of time, in which
  case it is called
  “permanent part-time work”. Part-time work can also be
  performed on a temporary basis (see “casual work,
  temporary
  work”).

• “temporary
  work” Employment governed by a fixed-duration contract where the
  term of the contract is defined by objective conditions
  such as
  reaching a specific date, the completion of a specific task, the
  occurrence of a specific event or the period required
  to replace an
  employee who is absent in the short term. See also “casual work,
  part-time work”.’

[15] The
ILO Part-Time Work Convention C175 of 1994, states that “the term
part-time worker means an employed person whose normal
hours of work
are less than those of comparable full time workers”. This
Convention charges ILO members to put in place measures
to ensure
that part-time workers receive conditions equivalent to those of
comparable full time workers in the areas of maternity
protection,
termination, paid annual leave and sick leave. Also to ensure
measures of protection in respect of the right to organise
and
bargain collectively, occupational health and safety, and
discrimination in employment and occupation.

[16] It
is clear from the evidence in this case that the applicants were not
casuals. They were not in part-time work as they did
not
consistently work less hours than the statutory or usual working
hours of full time employees. They sometimes worked an 8 hour
day,
sometime less, and sometimes more. They did not work a regular 5 to 6
day week. They were atypical workers. They were, however
involved in
temporary employment governed by the condition of the completion of a
specific task. In this regard, save for the termination
provisions,
they were no different from your typical employee subject to the
other provisions of the Employment Act.

[17]
Generally, an employee’s working hours, rest periods, and
entitlement to overtime can be found in the provisions and
regulations
of the Employment Act. Part VIII of the Act deals with
rest periods and hours of work of employees. The relevant sections
read as
follows:

“95
(5). If an employee is required to work in any one day more than
the number of hours in the ordinary daily working period,
the number
of hours so worked in excess shall be deemed, for the purposes of
this Act, to be overtime, and the employee shall
be paid for such
overtime one and a half times the wages he would have been paid had
the time worked not been overtime.

(6) Notwithstanding
subsection (5), where a contract of employment provides for the
payment of wages without reference to the number
of hours worked by
the employee and further provides that he may be required to work
overtime in exceptional circumstances and
he is on occasion so
required to work, he shall not be entitled to be paid for the
overtime unless the contract of employment otherwise
provides
….………………………………

96.
Nothing in this part shall prevent any employer from agreeing with
any employee that the wages of the employee shall be paid
at an
agreed rate in accordance with the task, that is, the specific
amount of work required to be performed, and not by the day
or by
the piece”.

[18] Therefore,
where an employee is required to work more than the number of hours
in the ordinary daily working period, the number
of hours so worked
in excess shall be deemed to be overtime and for which the employee
shall be paid one and a half times his ordinary
wage – section 95
(5). Notwithstanding the aforesaid subsection (5), in terms of
section 95 (6) of the Employment Act, where a
contract of employment
provides for the payment of wages without reference to the number of
hours worked by the employee, and where
the employee is required to
work overtime occasionally in exceptional circumstances, the employee
shall not be entitled to be paid
for overtime unless the contract of
employment makes provision therefor. Section 96 of the Employment
Act further provides that
nothing shall prevent any employer from
agreeing with any employee that the wages of the employee shall be
paid at an agreed rate
in accordance with the task to be performed,
and not by the day or the piece.

[19] I
find that the applicants were engaged in atypical work. They had
temporary employment to dismantle the mine shaft with an expected
completion time of two months. There were no agreed hours of work.
Occasionally, they would load up and drive to Sejwe to drop
off the
dismantled pipes and sheets. In accordance with the task and
estimated duration, they agreed a daily flat rate, working irregular
hours and overtime occasionally, if at all.

[20] Aside
from the implications of the above sections, taking the totality of
the evidence before us into account, the court finds
that the
applicants have not proved any claim for overtime or withheld wages.
In the circumstances, the court finds that the applicants
are not
entitled to any further payments from the respondent. Their claims
are therefore dismissed.

Respondent’s
Claim

[21] The
respondent alleges that Desai owes him two week’s notice pay in
lieu, and Petrus one week’s pay in lieu. By his own testimony,
Morris waived his rights with regard to Petrus when he paid him his
dues and gave him the benefit of a week’s notice. He did not
register a dispute within the prescribed time with the labour office
with regard to his alleged claim against Desai, and has not
pursued
any such claim. The respondent’s claims against the applicants or
either of them, for notice pay in lieu of notice, are
accordingly
dismissed.

Determination

[22] In
all the circumstances of this case, the court therefore makes the
following determination:

1. The
applicants have not proved any claim for withheld wages or overtime
and same are dismissed.

2. The
respondent’s claims for notice pay are also dismissed.

2. No
order is made as to costs.

Dated
at Gaborone this day of May 2006.

…………………………………..

M.
EBRAHIM-CARSTENS

INDUSTRIAL COURT
JUDGE

We
agree on the facts:

…..………………………………………

M.K.
MASHUMBA

NOMINATED
MEMBER (UNION)

..………………………………………

B.O.
TSHEKO

NOMINATED
MEMBER (BOCCIM)

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