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IN THE INDUSTRIAL COURT OF BOTSWANA

HELD AT GABORONE

  CASE NO. IC.F
102/2004

IN THE DISPUTE BETWEEN

 

TSHEPHO KGOSIDIALWA
………………………. APPLICANT

AND

 

UNITRANS BOTSWANA (PTY) LTD
………………………. RESPONDENT

————————————————————————————————————-

CONSTITUTION OF THE COURT

D. J. de VILLIERS
INDUSTRIAL COURT JUDGE

S. C. L. DINGALO
NOMINATED MEMBER (UNION)

M. B. S. LESELWA
NOMINATED MEMBER (BOCCIM)

FOR
THE APPLICANT:

MR
SONNY PHIRI

FOR
THE RESPONDENT

MR MIKE STEEL GENERAL MANAGER AND REGIONAL DIRECTOR OF
RESPONDENT COMPANY

PLACES
AND DATE S OF PROCEEDINGS

FRANCISTOWN 7
APRIL 2005

GABORONE 1
NOVEMBER 2005

Managerial
employee – as supervisor the employee was a managerial employee –
does therefore not qualify for payment of any overtime.

Deductions
from employee’s salary – deduction of loan amount granted by
employer and deduction of house rentals paid by employer
on behalf of
employee while he was hospitalised – both are authorised deductions
in terms of subsections 80 (3) and 80 (1) (b)
(i) of the Employment
Act.

JUDGMENT

Applicant’s
evidence

[1] The applicant
said that when he started working for the respondent on 4 January
1999 he was appointed senior security officer
at Lobatse. On 1 April
2000 he was transferred from Lobatse to Selebi Phikwe as a
supervisor. He said he had to run the transport
operations there for
the respondent. The nature of the respondent’s business is the
road transportation of goods. With this transfer
and promotion he
said his monthly salary was increased from P750 to P1400. He said he
was given a job description for this new job
but he cannot find his
copy. He worked there as such till the end of December 2001 and was
then transferred to Francistown as dispatch
manager as from the
beginning of January 2002. There he remained till he resigned on 7
May 2004.

[2] The applicant
said that his reason for resigning was because the respondent refused
to pay him his overtime which he had worked
from 1 April 2000 to 31
December 2001. As he has still not been paid this overtime, the
applicant is now claiming his overtime payment
for the said period.
He is also claiming repayment of what he said were unauthorised
deductions from his last salary.

The
respondent’s version

[3] The
respondent’s general manager, mr Steel testified that the applicant
was transferred from Lobatse to Selibe Phikwe as supervisor
and as
trainee manager. He said as such the applicant was a managerial
employee and he was therefore excluded from claiming overtime.
He
said that, as to the alleged unauthorised deductions, they were all
lawful and authorised deductions. The court will deal with
the
applicant’s said two claims here below under separate headings and
will then deal with further evidence of the applicant and
of the
general manager.

Overtime

[4] The applicant
testified that from the time he started working as supervisor for the
respondent at Selibi Phikwe, he was required
to work 12 hours a day.
As his normal working hours were 9 hours a day, he said he therefore
worked 3 hours overtime on each working
day during the said period
from April 2000 to December 2001, which is for a period of 21 months.
He has prepared a schedule setting
out his overtime hours in each
month for the said 21 months. According to this schedule the
applicant had worked 1218 hours overtime
during this period and
according to his statement of case this amounts to overtime payment
of P34,000.00.

[5] The applicant
said that at the end of his first month he handed his overtime claim
to the depot manager who submitted it to head
office in Gaborone.
After some time the depot manager told him that the operations
manager had rejected his claim for overtime.
About a year later, on
6 March 2002, the applicant wrote a letter to the area manager for
the northern area, complaining about the
non payment of his overtime.
He said he never received a reply to this letter. He sent another
letter, dated 6 August 2002 to the
same area manager, still
complaining about the non payment of his overtime, to which letter he
also received no reply.

[6] On 26 August
2002 he again wrote to this same area manager about his overtime. On
10 February 2004 he received a reply to this
letter from the
operations manager, in which letter it was inter
alia stated:

“The
issue of overtime has been dealt with previously and as previously
stated – in terms of the Act the following are totally excluded
from Part VIII of the Act which regulates hours of work, overtime,
rest periods, public holidays, annual and sick leave:

Managers,
executives, administrators, professional staff and employees of
similar status.”

[7] The applicant
said that this was the first time he heard that because he was
regarded as a managerial employee, that is why his
claims for
overtime were rejected. He said that when he was transferred to
Selibe Phikwe no-one told him that he was not entitled
to overtime
payment. The court finds that this is not a true statement because
under cross-examination he replied as follows to
the following
question:

“Did
I not speak to you personally that because you are a trainee manager
you are therefore not entitled to overtime? – Yes, several
times on
the phone.”

[8] The general
manager said that as the applicant told him that he was no longer
interested in this training programme of a trainee
manager, he
transferred him to Francistown as dispatch manager as from January
2002. He said the applicant was already at Francistown
when they
received his first complaint about non-payment of overtime, as per
his said letter dated 6 March 2002 and thereafter, every
time the
applicant had financial problems and needed to borrow money, he
raised this question of overtime payment again. He said
that as the
applicant fell in the category of managerial employee, he is not
entitled to payment of overtime and he was so told when
he was
promoted to trainee manager and transferred to Selibe Phikwe.

Managerial
employees

[9] The
respondent’s defence to the applicant’s claim for overtime
payment is based on the provisions of subsection 2 (3) of the
Employment Act (Cap.47:01), which provides as follows:

“3. The
provisions of Part VIII shall not apply in the case of an employee
who falls into a category of persons commonly known as managers,
administrators or executives or as professional staff or into some
other category of persons of the same or similar status.”

Part VIII of the
Employment Act deals with rest periods, payment for work during rest
periods, hours of work, task work, shift work,
paid public holidays
and paid sick leave. Section 95 of the said Act which deals with
hours of work also deals with overtime payment
for working in excess
of the normal working hours.

[10] For lack of a
better description, the court will refer to the abovementioned
collective category of employees as a managerial
employees. The next
question then is, which employees will fall within this category of
managerial employees?

[11] Le Roux and
van Niekerk, The South African Law of Unfair Dismissal, state at page
75:

“5.9 Managerial
employees

The
court has not attempted to give content to titles or designations
such as ‘manager’ or ‘executive’. Most of the decisions
simply assume or state that the relevant employee is a manager or
executive without analysing in detail why this is the case. The
decisions seem to indicate that the court regards such an employee as
a person who, directly or indirectly, controls, or has authority
over, or is accountable for, the actions of subordinates, and is
charged with the duty of formulating and overseeing the
implementation
of employer policies. The formal title or designation
of an employee, while not irrelevant, need not be decisive or even
important
in defining the status of the employee. The fact that a
person is given the title of a manager or is referred to as an
executive
does not necessarily mean he holds a place high in the
hierarchy of employees, that he acts in a supervisory capacity, or
that he
has important decision-making or policy-formulating
functions. The size and nature of the business will also be of
relevance. It
is evident that managerial or executive employees can
cover a spectrum of employees from the managing director of a company
to a
low-level manager who is in charge of a small section of the
work force or business. This, together with the fact that the
court’s
decisions often do not analyse the functions and
responsibilities of the employees concerned (thereby not indicating
roughly where
they fall within the spectrum), makes it difficult to
analyse them and to provide a detailed picture of its approach to
these types
of employees.”

[12] In
S.A. Society of Bank Officials v. Standard Bank of S.A. Ltd.
(1994) ILJ 332 (IC), the court found that the definition of
“employee”
in the Labour Relations Act does include “branch
manager” and in ascertaining what the
characteristics of a branch manager are, Pienaar S.M. said the
following at page 339:

“The
respondent submitted a document reflecting the job description of a
branch manager. —————————

The
branch manager would be responsible for, inter alia, planning, human
resource management, business development and maintenance,
sales,
service standards, communication, control of budgets, marketing and
sales plans etc, credit and credit control.

In
Keshwar v SANCA (1991) 12 ILJ 816 (IC) De Kock SM (at 818H)
described a manager as an
‘individual who, in a given situation, wields the power to define
policy, to make rules and to enforce
the policy and rules through
commands to subordinates.’ He concluded that ‘[i]t is therefore
generally accepted that those employees
who are to be regarded as
part of “management” start at the level of supervisor and foreman
(see Kahn-Freund’s Labour and the
Law 3 ed at 15 and Poolman
Principles of Unfair Labour
Practice at 96).’

In
Simplex
Industries
243
NLRB No 13 the United States National Labor Relations Board
reiterated the legal standard for determining managerial status as
follows:

‘The
Supreme Court and the Board, in determining managerial status, weigh
the facts elicited to determine whether or not the persons
at issue
are involved in the formation, determination, and effectuation of
management policies by expressing and making operative
the decisions
of their employer, and whether they have discretion in the
performance of their job duties independent of their employer’s
established policies.’

—————-

The
final determination is usually the product of the particular facts of
each case. Factors such as the nature of the organisation,
the
manner in which it is orgarnised, a person’s position in the
structure, the extent of a person’s authority over other employees,
the amount of non-managerial work performed by a person are all taken
into account in determining whether managerial exercised.

Undoubtedly
much more can be said regarding the essence of management. It
appears to me, however, that the criterion applied in the
Simplex
Industries case
adequately covers the characteristics one would normally associate
with management, e.g. an independent discretion, authority
over
subordinates and participation in the formulation and implementation
of management policies.

One
could probably add to the abovementioned characteristics that such a
manager’s remuneration and promotion depend to a far greater
extent
than would normally be the case on his own performance.”

[13] This court
has also, without analysing the functions and responsibilities of the
employees concerned, made the following rulings
in the following two
cases. In the case of E Basimolodi v. John Syllas Group, case
no. IC 75/98 (J.362), dated 18 November 1999, the court found that
the applicant, as a general manager of the respondent, was
not
entitled to overtime payment. In the case of J. Molale v. The
Village Spar (Pty) Ltd, case no. IC.58/2000 (J.448), dated 10
August 2000, the court found that the applicant, as assistant branch
manager, was not entitled
to overtime payment.

[14] The applicant
stated that when he was transferred to Selebi Phikwe he saw on his
pay slip that his designation was now supervisor.
The general
manager said that documents showed that the applicant was a
supervisor, but he was in fact more than a supervisor, as
he was also
a trainee manager. For purposes of this judgment the court will
accept that while the applicant was at Selebi Phikwe
he was a
supervisor. The general manager submitted a document which is the
job description of a supervisor. It will be much easier
to set out
this whole document instead of trying to summarise it. This document
stipulates the following:

“1. The
prime task of Supervisors is to ensure that wheels are turning as
efficiently and cost effectively as possible.

2. Supervisors
must be familiar with all aspects of company administration and
regulation procedures.

3. Supervisors
   must be familiar with the H.S.E Policy.

3. Supervisors
   are required to assist Drivers in the pre-trip brief and vehicle
   checks; i.e. documentation; oil and water checks; cab
   checks; driver
   checks etc.

3. Supervisors
   are to brief Drivers prior to a trip, giving them the following
   information on the tripsheet; customer; collection point;
   product to
   load; delivery point; route, relevant documentation; money for trip
   costs; agree schedules and equipment.

3. Supervisors
   should liase with customers regarding despatch and e.t.a of
   vehicles.

3. Vehicle
   movement boards are to be updated on a daily basis.

3. Supervisors
   are responsible for the planning of economic vehicle utilisation.

3. Supervisors
   must keep constant surveillance on vehicle movements and update
   vehicle movement board accordingly.

3. Supervisors
   are to ensure that the fleet is maintained and serviced at the
   required service intervals.

3. Supervisors
   are to ensure that the fleet is maintained and serviced at the
   required service intervals.

3. Supervisors
   must Debrief Drivers after each trip, ensuring the following are
   checked and in order; trip sheets; compare debrief
   to brief; tachos;
   p.o.d’s; authorise bonuses; enquire of drivers well being;

3. Supervisors
   are responsible for the well being of their drivers.

3. Supervisors
   are responsible for the upkeep and tidiness of the depots.

3. Supervisors
   must ensure Drivers maintain the company image and are suitably
   dressed when on duty.

3. Supervisors
   will perform random alcohol tests and be aware of drivers on any
   form of medication or habit-forming drugs.

3. Supervisors
   are expected to be available for accident call-outs and be familiar
   with the company accident procedure.

3. Supervisors
   are responsible for arranging and chairing Toolbox meetings.

3. Supervisors
   are responsible to ensure that all vehicle permits and licences are
   renewed as and when they expire.

3. Supervisors
   are required to perform driver counselling as and when required.

3. Supervisors
   report directly to the Depot Managers will perform any reasonable
   requirements by the Depot Manager.

3. Supervisors
   are to ensure that trip sheets and relevant documentation is
   channelled to the correct persons responsible for the data
   capture.

3. Supervisors
   are responsible to report to management as to what training is
   required by the drivers.”

[15] The applicant
did not really dispute the fact that he was a managerial employee,
because he based his claim for overtime on the
fact that no-one told
him that as supervisor, he was not entitled to payment of overtime.
The court finds that his basis for such
payment cannot be
entertained. The real test to decide whether he is entitled to
payment of overtime or not is the nature of the
work performed by
him.

[16] From the
aforesaid job description of a supervisor the court is satisfied and
finds that the applicant had wide supervisory powers
and authority
over his subordinates, he also had a wide discretion as to
disciplinary and training aspects of his subordinates and
he also
participated in the implementation of management’s policies.

[17] In the
circumstances the court finds that while he was a supervisor at
Selebi Phikwe he was a managerial employee as contemplated
in
subsection 2 (3) of Employment Act and therefore he was not entitled
to overtime payment.

Deductions from
salary

[18] The applicant
testified that according to his last payslip, which was before the
court, the respondent deducted P8341.86 from
his final salary,
stating that it was for loans. The applicant signed an
acknowledgement on 25 May 2004 that he received his dues
as set out
on the final payslip. This acknowledgment shows that the said
P8341.86 was made up as follows, P3741.86 for house rent
paid on
behalf of the applicant, P3000 was an advance and P1600 was also an
advance. He said he only authorised the one deduction
of P1600,
being money he borrowed to attend his graduation ceremony at RAU
university. The applicant is therefore only disputing
the other two
amounts as unauthorised deductions.

[19] The applicant
said he remembers the P3000. He once just mentioned that he needed
P3000 to have his vehicle fixed. It needed
a new engine. He never
asked to borrow P3000 and the general manager just offered it to him,
which he accepted and had his car fixed.
He said there was nothing
in writing to say how this amount should be paid back in instalments.
Therefore the respondent had no
right to deduct it from his salary
in one lump sum. He said he in any case never authorised the
respondent to deduct any of the
P3000 from his salary.

[20] The applicant
said that he was hospitalised for 2 months at the Princess Marina
hospital. He said the respondent rented houses
from BHC for its
staff and he also had one of these rented BHC houses. When he was in
hospital the respondent paid his house rent
for him for the said 2
months, which amounted to P3741.86. He said he never asked the
respondent to pay it for him, so why must
he pay it back.

[21] The applicant
stated that these last two mentioned deductions, which totals
P6741.86, are therefore un -authorised deductions
and he wants an
order directing the respondent to repay him the said amount. He
further stated that as the respondent never asked
for this money back
before and now only deducted it after having received his letter of
resignation, goes to show that the respondent
never intended that he
should pay it back.

[22] The general
manager testified that he received a request on 10 February 2003 from
Steven Price, the contract manager that the
applicant wanted to
borrow P3000 to buy an engine for his vehicle. The applicant
produced a quotation from Auto and General for
a complete Cressida
engine for P3900. The general manager authorised this loan on
condition the applicant repays it over 3 months.
The applicant
signed an authorisation on 13 February 2003 for the deduction from
his salary of P1000 per month over a period of
3 months, “being
a debt owed to the company as from March 2003 for the amount of
P3000.” All the above evidence of the
general manager was supported by documentary evidence.

[23] The general
manager said the reason why the respondent had not yet started
deducting these monthly instalments was because the
applicant had
requested that these payments be held back till he receives his
gratuity. This request was acceded to and there is
an endorsement to
that effect on the aforesaid authorisation for deduction. The court
accepts the general manager’s evidence as
supported by documentary
evidence, as it is far more probable than the applicant’s evidence,
which evidence the court rejects as
ridiculous and unacceptable. The
court therefore finds that the P3000 was a loan that was granted to
the applicant by the respondent.

[24] As to the two
months’ rent for the applicant’s BHC house, the general manager
explained it as follows. He said that when
the applicant was
transferred from Selebi Phikwe to Francistown as dispatch manager,
the respondent paid for the transport to Francistown
of his furniture
and all his other belongings. As part of this transfer deal the
respondent also paid his first month’s rent in
this BHC house and
he was paid one month’s extra salary to cover any other expenses.

[25] Some time
thereafter the applicant was hospitalised for 2 months and the
respondent paid him his full salary for the said 2 months
although,
in terms of his letter of appointment he was only entitled to 14 days
paid sick leave in any one year. The general manager
testified that
while the applicant was so hospitalised he requested the respondent
to pay the rental for his house while he was in
hospital. This the
respondent did and later the applicant also requested that the
repayment of these 2 months rental also be held
back till he receives
his gratuity, which request was also acceded to. That is why the
said loan amount and this rental amount were
held back and when the
applicant suddenly and unexpectedly resigned, giving only 2 days
notice, the respondent had no other choice,
but to deduct the full
amounts from his final payment. For this rental deduction the court
also accepts the general manager’s
evidence, as it is again more
probable than the applicant’s evidence.

[26] The final
question for this court to answer is whether the aforesaid two
deductions for the loan and the rental are authorised
deductions in
terms of the Employment Act. Section 79 (1) of the Employment Act
states that only authorised deductions shall be
made from an
employee’s wages or from any other payments which may be due to the
employee. Section 80 (1) sets out what authorised
deductions are and
section 79 (1) further states that if a deduction is not authorised,
no such deduction shall be made from an employee’s
wages or from
any other payment, not
even with his consent. Section 79 (2)
provides that where an employer makes such unauthorised deductions,
he shall be guilty of a criminal offence and
upon conviction, may be
sentenced to a fine not exceeding P2000 or to imprisonment not
exceeding 18 months or to both such fine and
imprisonment. (The
court’s underlining).

[27] As to the
loan of the P3000, the relevant portions of subsection 80 (3)
provides as follows:

“(3) Notwithstanding
any other provision of this Act, to the contrary, where –

1. an
   employer —– makes a loan to an employee;

2. the
   total amount of the loan has been paid by the employer —–, to
   the employee in cash or by cheque; and

3. a
   memorandum of the transaction has been made and signed by or on
   behalf of the employer —– and employee providing for the
   repayment
   of the loan by one or more instalments,

the
employer may deduct from any wages, ex gratia payments,
severance pay, gratuities and payment for accrued leave due to the
employee such instalments at such times as are set out
in the
memorandum.”

[28] The court
finds that the aforesaid deduction authorisation complies with the
requirements of the memorandum, as set out in the
said subsection 80
(3) ( c) and that the respondent has also complied with the
provisions of subsections 80 (3) (a) and (b). The
court consequently
finds that the deduction of the said amount of P3000 from the
applicant’s final payment, was an authorised deduction
–
authorised by the Employment Act and by the applicant.

[29] As to the
deduction of the amount of P3741.86 for the two months house rental
while the applicant was in hospital, the only subsection
of section
80 of the Employment Act that could possibly be applicable, is
subsection 80 (1) (b) (i) which provides as follows:

“(1) Notwithstanding
any other provision of this Act, an employer may –

(a)
——–

2. with
   the consent of the employee, deduct from the wages and any other
   payments which may be due to the employee any amount –

1. due
   to the employer by way of rental or service charges for quarters
   provided by the employer and occupied by the employee:”

[30] It was common
cause that the respondent was renting this BHC house and other BHC
houses from BHC for occupation by its employees.
The court has
already found that the applicant had requested the respondent to pay
the monthly rental of this house to BHC as long
as he was in hospital
because he did not want to be evicted. The court finds that, by
requesting the respondent to hold back the
repayment of the said
rental till he receives his gratuity, is corroboration of the general
manager’s evidence that the applicant
had consented to the
deduction from his salary of the said two months rental of P3741.86.

[31] The court
consequently finds that the deduction of the said amount of P3741.86
from the applicant’s final payment, was an authorised
deduction –
also authorised by the Employment Act and by the applicant.

Determination

[32] The court
therefore makes the following determination:

1. As the
applicant, Tshepho Kgosidialwa, was a managerial employee as
supervisor, he is in terms of subsection 2 (3) of the Employment
Act,
not entitled to payment for any overtime worked.

2. The deductions
from the applicant’s final salary of the following amounts:

(a) P3000.00,
being in respect of a loan granted to the applicant by the respondent
at the request of the applicant; and

(b) P3741.86,
being in respect of the payment of two months’ house rental by the
respondent on behalf of the applicant at the request
of the
applicant,

were authorised
deductions in terms of subsections 80 (3) and 80 (1) (b) (i) of the
Employment Act.

3. The applicant
is therefore not entitled to any payment

from the
respondent as a result of his resignation from the respondent’s
employment on 7 May 2004.

4. No order is made
   as to costs.

Dated at Gaborone
this 31^st day of January 2006.

_________________________

D. J. de
Villiers

INDUSTRIAL
COURT JUDGE

We agree on the
facts:

____________________________

S. C.
L. Dingalo

NOMINATED
MEMBER (UNION)

________________________________

M. B. S.
Leselwa

NOMINATED
MEMBER (BOCCIM)

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