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THE INDUSTRIAL COURT OF BOTSWANA

HELD AT GABORONE

CASE NO. IC 665/04

IN THE DISPUTE BETWEEN

 

KABO SEBAKO
………………………. FIRST APPLICANT

MATTHEWS MOLEFE
………………………. SECOND APPLICANT

AND

 

SHONA GAS ………………………. RESPONDENT

——————————————————————————————–

CONSTITUTION OF THE COURT

D. J. de VILLIERS INDUSTRIAL COURT JUDGE

E. O. MODISE NOMINATED
MEMBER (UNION)

B.
S. TSAYANG NOMINATED MEMBER (BOCCIM)

FOR
THE APPLICANTS

BOTH
IN PERSON

FOR
THE RESPONDENT

MR M. L. GARE MANAGER OF RESPONDENT COMPANY

PLACE
AND DATE OF PROCEEDINGS

GABORONE 10
AUGUST 2005

JUDGMENT

Minimum
wages – employer cannot agree with employees to work for less than
minimum wage.

Overtime
– employer cannot agree with employees that they will work longer
hours for no overtime.

Rest
days – employees required to work on their rest days must be paid
double time.

Evidence of the
applicant

[1] The first
applicant testified that he started working for the respondent as a
driver on 13 June 2004. He had to deliver full
gas cylinders to
businesses and private homes and to collect the empty cylinders.
There were 2 drivers and the respondent had 2
delivery trucks. Each
driver had an assistant and the second applicant was his assistant.

[2] He said that
on 29 October 2004 the respondent’s manager, mr Gare took one truck
as he had to go to Lobatse. The second driver
could therefore not
deliver and sat in the office the whole day with the lady checker.
He and the second applicant therefore had
to do all the deliveries on
that day, which happened to be a very busy day. The checker had
checked all the full gas cylinders which
they loaded onto the truck
and they went off to deliver. That afternoon they had to do more
deliveries as the manager had not yet
returned from Lobatse with the
other truck.

[3] They returned
to the depot with empty gas cylinders to collect more full ones for
further deliveries. He said the normal procedure
was that in such
cases they had to off load the empty cylinders first, which had to be
checked by the checker and then she had to
check the full ones they
had loaded for further deliveries. He said on that day the checker
told them that as they are running late,
they need not off load the
empty cylinders. She just checked them on the truck. He and his
assistant then started loading full
gas cylinders from the cage onto
the truck and these were also checked by the checker.

[4] When they
returned that evening after doing all their deliveries, they found
the manager there. He had already taken his daily
stock and he was
raving about one full gas cylinder which was missing from the cage.
He then called the two of them, the other driver
and the checker into
his office. He asked them how come there was one full cylinder
missing and all four of them said that they
did not know. The first
applicant explained to the manager how they loaded and off loaded
that day and each time the full and the
empty gas cylinders balanced
with the checkers check list. The manager was not happy that they
did not off load the empty cylinders
first that afternoon before
loading further full cylinders. He then told all four of them to go
home.

[5] The next
morning, 30 October 2004, the manager called only the two applicants
to his office and said to them that there is nothing
further he can
now do about this missing full gas cylinder, but to give both of them
two weeks notice of termination of their contracts
of employment.
Shortly after they started working this notice period, the manager
told them to leave and serve the rest of their
notice at home which
they then did. At the end of the 14 days they were paid 14 days
notice pay in lieu of notice. Much later,
on the recommendation of
the labour officer, the manager paid them a further 14 days notice
pay in lieu of notice, as well as their
accrued leave pay.

[6] The first
applicant said that as he was unfairly dismissed, he is now claiming
compensation. He said he and the second applicant
worked 12 hours
per day and were not paid any overtime. He now wants overtime
payment and payment for the off days on which he worked,
as well as
for 44 weekend days, i.e. Saturdays and Sundays on which they had
worked.

[7] The second
applicant testified that he started working for the respondent on 13
June 2004 as a truck driver assistant. He confirmed
the evidence of
the first applicant and said as they had worked the exact same days
and hours, his claims are exactly the same as
that of the first
applicant.

Reasons for
dismissal

[8] Both
applicants stated that they were dismissed because the manager had
suspected them of having stolen the said full gas cylinder.
Both
applicants received similar letters of dismissal on 1 November 2004,
which letters read as follows and were signed by the manager:

“Dear
Mr Sebako

After
carefull consideration and clear observation towards your performance
with the employ of this company Shona Gas. I have made
oral warnings
to you in a number of occasions on your misconduct’s while on duty.

From
my personal opinion this does not bear any fruit as there is no
improvement from your side in conducting yourself well. I therefore
have no option, but have decided to terminate your services from work
with notice of (14) fourteen days effective from 1^st
November 2004 until the 14 November 2004.”

[9] In reply to a
question by one of the assessors, who asked what the reason was for
the dismissal of the two applicants, the manager
stated that there
were other reasons as well, besides this missing full gas cylinder.
When asked about what the other reasons were
he said he did not like
their attitude, because according to their custom they should respect
their elders. He said he often spoke
to them about it. When
questioned further about this by the court, he said: “I
spoke to all employees together about this. I never spoke to the two
applicants separately.” (My notes) The
court finds that if it had not been for the missing full gas
cylinder, the manager would not have done anything further
regarding
the staff’s disrespect for elders. When the manager questioned the
4 of them in his office about this missing full gas
cylinder, he
referred to them as snakes and said they thought they were clever. In
his cross-examination of the first applicant,
the manager said that
because the applicants had not followed normal procedure by first off
loading the empty gas cylinders before
loading the full ones, he
therefore linked the two of them to the shortage of the said full gas
cylinder. The court therefore finds
that the real reason for the
dismissal of the two applicants was because the manager believed that
they had stolen the said full
gas cylinder.

[10] Before
dealing with further aspects of the applicants’ evidence and the
evidence of the manager, the court will first set out
general
principles of law and of equity relevant to a fair dismissal on a
charge of theft and then determine whether the respondent
had
complied with such principles.

Substantive
fairness

[11] Substantive
fairness relates to the reason for terminating an employee’s
contract of employment. An employer can only terminate
an employee’s
contract of employment without notice or with notice or by paying him
notice pay in lieu of notice, if he has a valid
reason for such
termination.

[12] In terms of
section 26 (1) of the Employment Act, an employer may dismiss an
employee without notice, where the employee has
been found guilty of
serious misconduct in the course of his employment.
“Serious misconduct”
is defined in section 26 (4) and section 26 (4)
(d) is obviously the section relied on by the said manager as the
reason for dismissing
the applicants, on 14 days notice. The said
section provides as follows:

“For
purposes of this section the term “serious misconduct” shall,
without prejudice to its general meaning, include or be deemed
to
include the following:

(a) –
(c ) ————————————-

(d) acts
of theft, misappropriation or wilful dishonesty against the employer,
another employee, or a customer or client of the employer;

(e) –
(1) ———————————-

[13] A dismissal
as a result of misconduct, albeit ordinary misconduct or serious
misconduct, on the part of an employee, is also
known as a
disciplinary dismissal. This means that the general rule is that an
employee may not be dismissed for misconduct unless
a disciplinary
enquiry has been held. In this court’s judgment in the case of M.
Phirinyane v Spie Batignolles, Case No.IC 18/94 (J.4), dated 6
January 1995, the court found that, although the Employment Act does
not prescribe any procedure
which an employer should follow before
dismissing an employee for misconduct, the rules of natural justice
nevertheless dictate that
there must be a valid reason for such
dismissal. To establish whether there is a valid reason, it is
necessary to hold a disciplinary
enquiry prior to a dismissal.

[14] These rules
of natural justice, or rules of equity as they are sometimes called,
are derived from conventions and recommendations
of the International
Labour Organisation (ILO), which this court, also being a court of
equity, applies when determining trade disputes.
These conventions
and recommendations are international labour standards. The basic
requirements for a fair dismissal are set out
in article 4 of ILO
Convention no.158 of 1982. Article 4 reads as follows:

“The
employment of a worker shall not be terminated unless there is a
valid reason for such termination connected with
the capacity or conduct of the worker or based on the operational
requirements of the undertaking,
establishment or service”.
(Court’s underlining).

This article 4 is
then also the origin of the equitable requirement that an employee
can only be dismissed if the employer has a valid
reason for doing
so.

[15] To comply
with the “valid
reason”
test, an employer must be satisfied, judged
objectively, that the misconduct, with which the employee is charged,
especially misconduct
of which dishonesty is an element, for example
theft, fraud, forgery, etc, had in fact been committed and that there
is sufficient
proof that the said misconduct had in fact been
committed by the employee so charged. It must be remembered that it
is not for an
employee to prove his innocence. It is for the
employer to prove the employee’s guilt.

[16] As to the
degree of proof required, Rycroft and Jordaan, A Guide to South
African Labour Law, second edition, state at page 196
paragraph
4.6.1:

“The
employer’s reasons for dismissing an employee must be both valid
and fair. Validity, it has been said, ‘goes to proof and
to the
applicability to the particular employee of the reason for the
dismissal’. The enquiry is whether the facts on which the
employer
relied to justify the dismissal actually existed. The employer is not
allowed to rely in court on reasons not relied upon
or not known at
the time of the dismissal. While a mere suspicion of misconduct is
not sufficient to warrant dismissal, the employer
is also not
required to prove the employee’s misconduct beyond reasonable
doubt. It is sufficient if the employer had reason to
believe on a
balance of probabilities that an offence had been committed”.

[17] The court
wants to emphasis that mere suspicion is not sufficient grounds or a
valid reason for dismissing an employee. When
an employee denies any
misconduct it is essential for an employer to hold a disciplinary
enquiry as soon as possible to establish

whether that employee has
in fact committed such
misconduct. Even when an employee pleads
guilty, a disciplinary enquiry must still be held, because after the
pronouncement of being
guilty, the employee must be given the
opportunity to lead evidence in mitigation of any punishment.

[18] As stated
above, the manager called the 4 staff members into his office and
asked all 4 of them for an explanation as to how
the said full gas
cylinder could have gone missing. When all 4 of them denied any
knowledge thereof, he called them snakes and that
they thought they
were clever. This clearly shows that the manager suspected all 4 or
any one or more of them of having stolen the
said gas cylinder. He
was not sure, because he had no evidence against any one of them.
All he had was a mere suspicion that any
one or more of the 4 could
have done it. As stated above mere suspicion is not a valid reason
for dismissing an employee.

[19] Yet on having
suspicion against all 4 the aforesaid staff members, the manager goes
and dismisses only the 2 applicants because,
as stated above, he
linked the 2 applicants to this missing cylinder just because they
had not followed the normal procedure to first
off load all empty gas
cylinders before loading full ones. The court finds this a
farfetched and unacceptable explanation. What
has empty gas
cylinders left on the truck got to do with a full gas cylinder that
disappeared from the cage, if indeed one did disappear
from the cage.

[20] The court
finds that the manager did not even clear the first hurdle to prove
that one full gas cylinder had in fact been stolen.
The first
applicant kept on asking the manager to produce his stock taking book
to prove that there was one full gas cylinder missing
on that day.
Eventually the manager conceded that the stock book will not show
that there was one full gas cylinder missing on that
day, as he did
not enter it as a loss. He then came up with another farfetched and
unacceptable explanation that the directors of
this company do not
tolerate any stock losses. He is held responsible for all stock
losses and only he has to pay for such stock
losses out his pocket if
he cannot pinpoint it to a specific employee. Even if he does pay
for a stock loss it still reflects badly
on his record. He said he
therefore showed this missing full gas cylinder as a sale on that day
and he paid for it.

[21] In the
circumstances the court finds that the manager failed to prove any
theft and also failed to prove that the two applicants
were involved
in any theft of a full gas cylinder on 29 October 2004. The court
therefore finds that the manager had no valid reason,
only a
suspicion, to dismiss the two applicants, and was not even entitled
to do so on notice. The court consequently finds that
the dismissal
of the two applicants was unlawful as well as wrongful, it being
substantively unfair.

Procedural
fairness

[22] Procedural
fairness relates to the proceedings followed by an employer prior to
dismissing an employee. The basic

requirement for a
procedurally fair dismissal is set out in article 7 of ILO Convention
No.158 of 1982, which article reads as follows:

“{t}he
employment of a worker shall not be terminated for reasons

related
to the worker’s conduct or performance before he is provided with
an opportunity to defend himself against the allegations
made,
unless the employer cannot reasonably be expected to provide the
opportunity”.

[23] The court has
already stated above that in order to determine whether there is a
valid and fair reason for dismissing an employee,
a fair procedure
must be followed by the employer prior to dismissing an employee
especially where an employee denies the charge,
as in this case. A
fair procedure means that a fair disciplinary enquiry must be held.
In the Spie Batignolles – case,
supra the court
mentioned a few exceptions to the general rule of natural justice
that a fair disciplinary enquiry should precede a dismissal
for
misconduct, which exceptions are not applicable in this case and need
therefore not be repeated. In the said Spie
Batignolles – case the court also set
out the equitable requirements (rules of equity) for a fair
disciplinary enquiry, which will also not
be repeated here as they
have also been set out in so many subsequent cases.

[24] The aforesaid
rules of equity are not binding rules of law. They are merely
guidelines to assist employers in arriving at a
fair decision when an
employee is charged with misconduct. The general rule is still
however that an employee may not be dismissed
for misconduct unless a
fair disciplinary enquiry has been held. Although the said
guidelines are not binding rules of law, if an
employer fails to
comply with such guidelines, the court could find such dismissal to
be procedurally unfair.

[25] It was common
cause that no disciplinary enquiry was held prior to the dismissal of
the two applicants. Once again the manager
gave a farfetched and
unacceptable explanation for not holding a disciplinary enquiry. He
stated that he did not hold a disciplinary
enquiry before dismissing
the two applicants because he did not think that this case was going
to lead to a court case.

[26] The court
consequently finds that the dismissal of the two applicants was also
procedurally unfair. The court will now deal
with the various claims
of the applicants.

Compensation

[27] Having found
that the dismissal of the applicants was unlawful as well as
substantively and procedurally unfair, will therefore
entitle them to
an award of some compensation as both are not interested in
reinstatement.

[28] Section 19
(2) of the Trade Disputes Act (Cap.48:02) sets out seven factors the
court may (my underlining) take into account in assessing a
fair and an appropriate amount of compensation and the court will
briefly deal
with these factors. The factors mentioned in
subparagraphs (a) and ( c ), actual and future loss and the
applicant’s prospects
of finding other equivalent employment, are
closely related and will be considered by the court in this case in
favour of the applicants.

[29] The first
applicant testified that he managed to find other employment and he
started working there on 1 February 2005. He was
paid for his notice
month in November 2004, so he was without work and without income for
2 months. The second applicant testified
that he was looking for
other work but without success. He stopped looking for work in the
middle of June 2005 as he enrolled as
a student at Kanye on 22 June
2005. He was therefore without work and without income for 7½
months.

[30] The court
finds that the factor mentioned in subparagraph (b), the age of the
applicants, is not really relevant. The first
applicant is 23 years
old and the second applicant is 20 years old. Their ages as such
should therefore not have prevented them
from finding other
employment sooner.

[31] The factor
mentioned in sub-paragraph (d), the circumstances of the dismissal,
is very relevant and the court will consider it
in favour of the
applicants as the respondent had no valid reason for dismissing them
and also followed no disciplinary procedure
prior to dismissing them.

[32] The factors
mentioned in sub-paragraphs (e) and (f) are not relevant in this
case. Similarly the court finds that the factor
mentioned in
sub-paragraph (g), the employer’s ability to pay, is not relevant,
there being no evidence as to ability or inability
to pay, from the
respondent’s witness.

[33] The court
finds that by using the underlined permissive word “may”
in the said section 19 (2), the legislature
did not intend the said seven factors to be exhaustive. This means
that there could be
other relevant factors as well, not mentioned in
section 19 (2), which the court may take into account as well in
assessing an appropriate
amount of compensation. One such factor,
not mentioned in section 19 (2), which the court finds relevant and
will take into account
in favour of the respondent is the relatively
short period of employment of the applicants. The first and second
applicants were
both in the respondent’s employ for just 5½
months.

[34] Another such
factor, not mentioned in section 19 (2), which the court finds
relevant and will take into account in favour of
the respondent is
the fact that it has already paid the applicants one month’s notice
pay in lieu of notice.

[35] This court
has already stated in numerous previous judgments that an employer
can only dismiss an employee on notice if he has
a valid reason for
doing so. It therefore follows that if an employer has no valid
reason for dismissing an employee on notice,
he may also not dismiss
the employee by giving him notice pay in lieu of notice in terms of
section 19 (a) of the Employment Act.
That means that if dismissal
on notice does not enter the picture, then notice pay in lieu of
notice can also not enter the picture.
To put it differently, where
an employee is dismissed for whatever reason, but the court finds
that the employer had no valid reason
to dismiss him, such employee
is then not entitled to notice pay. Having already found that the
respondent had no valid reason for
terminating the contracts of
employment of the applicants, the court finds that the applicants are
therefore not, as of right, entitled
to any notice pay in lieu of
notice. As the respondent has paid each applicant one month’s
notice pay in lieu of notice, which
he was not obliged to pay, the
said one month’s notice pay must therefore be deducted from any
compensation this court intends
awarding.

[36] Having
considered the aforesaid factors in favour of and against each party,
the members of the court are agreed that a fair
and an appropriate
award of compensation, in the particular circumstances of this case,
would in normal circumstances have been compensation
equal to 4
months monetary wages. From this amount must then be deducted the
one month’s notice pay in lieu of notice, which means
that the
applicants will receive compensation approximately equal to 3 months
monetary wages. The amounts so to be awarded to the
applicants are
not wages but compensation. The full amounts without any deductions,
must therefore be paid to the applicants.

Remuneration of
the applicants

[37] In terms of
section 135 of the Employment Act (Cap 47:01), the minister is
empowered to issue orders regulating minimum wages
in certain trades
and industries. Such orders do not only regulate minimum wages in
any given trade or industry. It also regulates
other aspects, such
as hours of work, weekly rest periods, paid public holidays,
overtime, annual paid leave, etc. Once such orders
are published in
the government gazette, they become subsidiary legislation and have
the force of law and they then form annexures
to the Employment Act.

[38] For purposes
of minimum wages, the manager said that he thinks their business
falls under the ministerial order regulating wages
in the
manufacturing, service and repair trades. He however stated that
they do not manufacture gas. They only sell gas on the
retail market
to customers. The minister has issued an order regulating wages etc
in the wholesale and retail distributive trades,
Paragraph 2 (1) (a)
of the said ministerial order provides as follows:

“2
(1) This order shall apply to all persons employed in any undertaking
or part of an undertaking which consists of the carrying
on of one
or more of the following activities –

1. the
   retail or wholesale supply of goods and merchandise;

2. – (c
   ) ——-.”

The court
therefore finds that the respondent’s business falls under the
aforesaid ministerial order.

[39] The minister
usually makes orders increasing the minimum wages in certain trades
and industries once a year. He made such an
order operative as from
1 June 2004, which was published in the Government Gazette on 18
June. Paragraph 3 (b) of the said order
provides that the minimum
wages for employees in the “retail
distributive trade” will be P2.55 per hour
as from 1 June 2004. Both applicants started working for the
respondent on 13 June 2004. Both applicants
were paid notice pay up
to 30 November 2004, which is therefore the date of their dismissal.
For the whole period of their employment
with the respondent, their
minimum wages were therefore P2.55 per hour.

[40] Paragraph 4
of the original ministerial order regulating wages, etc in the
wholesale and retail distributive trade provides that
the normal
working hours for employees in the said trades are 8½ hours in any
one working day and the normal working week for such
employees is 5½
days. The prescribed minimum daily rate of payment for the
applicants was therefore P21.68 (8.5 x P2.55).

[41] In terms of
section 95 (8) of the Employment Act, a 5½ day working week converts
to a 24 day working month. To calculate an
employee’s monthly rate
of payment his daily rate of payment must therefore be multiplied by
24. On this basis the monthly rate
of payment of each applicant
should therefore have been P520.32 (24 x P21.68).

[42] The manager
testified that he did not calculate the wages of the two applicants
according to the aforesaid minimum wages. He
said they agreed to
work 12 hours a day at fixed monthly wages. He said at the time of
their dismissal the first applicant was earning
P500 per month and
the second applicant P475 per month.

[43] For the
purposes of calculating the amount of their compensation, the court
will take the aforesaid figure of their monthly wages
and not the
amounts which the respondent actually paid to them. Leaving aside
for the moment the deduction of their notice pay,
the applicants
would have, under normal circumstances, been entitled to compensation
equal to 4 months monetary wages, which is P2081.28
(4 x P520.32).
From this amount must then be deducted the one month’s notice pay
which the respondent paid to each applicant,
namely P500 to the first
applicant and P475 to the second applicant. The first applicant is
therefore entitled to compensation in
the amount of P1581.28
(P2081.28 – P500.00) and the second applicant is entitled to
P1606.28 (P2081.28 – P475.00).

[44] The
applicants have not claimed underpayment of minimum wages but only
non payment of overtime for the hours they worked overtime
each day
and also overtime for the Saturdays and Sundays they worked. They
are also claiming for working on their off days.

Overtime on
week days and weekends

[45] The manager
testified that he does not owe the applicants any overtime payment as
they had agreed to work 12 hours a day for
fixed wages per month.
They cannot therefore now want to breach this agreement by claiming
overtime payment. If that is how the
manager understands the labour
law, then he is in for a big surprise.

[46] Section 138
(1) of the Employment Act provides as follows:

“Where
any contract of employment provides for the payment of a wage less
than the minimum wage to an employee to whom a minimum order
applies,
the contract shall have effect as if the minimum
wage were substituted therefore.” (The court’s underlining).

By using the
underlined word “shall”
in the aforesaid section, it is clear, in
terms of section 45 of the Interpretation Act (Cap.01:04), that the
provisions of the said
section are imperative. This means that an
employer has no option. He is obliged to pay his employees the
prescribed minimum wage.
He can therefore not even come to an
agreement with his employees that they will accept less than the
prescribed wage.

[47] The aforesaid
finding is supported by the provisions of section 138 (2) of the
Employment Act which provide that an employer
who fails to pay the
prescribed minimum wages, shall be guilty of a criminal offence and
upon conviction shall be liable to a fine
not exceeding P2000.00 or
to imprisonment not exceeding 18 months or to both such fine and
imprisonment.

[48] As stated
above, paragraph 4 of the said original ministerial order clearly
states that:

“no
employee shall be required to work —– more than eight and a
half hours in any one working day or a total of 47 hours in any
working week of five
and a half days.”

Paragraph 7 (1) of
the said ministerial order states:

“Where
an employee works for any period in excess of eight and a half

hours
in a working day or a total of 47 hours in a working week of five and
a half days ——, he shall
be paid an overtime rate of his normal hourly rate plus one-half of
such rate (otherwise known as “
time-and-a-half”).”

(The court’s underlining).
The provisions of both the aforesaid paragraphs are imperative
because of the use of the underlined imperative word “shall.”

[49] It was common
cause that the applicants were required to work daily from 7.30a.m to
7.30pm, which is 12 hours per day. Their
employment cards also
reflect this. Their undisputed evidence is that they did not have a
lunch break. Their employment cards also
do not show any lunch
break. They therefore actually worked 12 hours per day.

[50] Their normal
working hours per day were therefore from 7.30a.m to 4.00p.m (8½
hours) and the remaining 3½ hours (4.00p.m to
7.30p.m) from Mondays
to Fridays were therefore overtime at time-and–a-half for which
they were not paid. This is not disputed.
Their normal working
hours from Mondays to Fridays were 42.5 hours (5 x 8½). Their
normal working hours for a week were 47 hours,
which makes their
normal working hours on a Saturday 4.5 hours (47-42.5), which is from
7.30a.m to 12 noon. The remaining 7½ hours
(12 noon to 7.30p.m) on
Saturdays were therefore overtime hours, which should have been paid
at time-and-a-half.

[51] It was common
cause that the applicants were given 4 days off in a month. The
undisputed evidence of the applicants was that
these off days were
always given to them in the middle of the week. There is however a
dispute as to whether they took these off
days or not. Whether they
took it or not will not effect the calculations under this heading,
as the court will deal with off days
under a separate heading. Their
undisputed evidence then also means that they worked every Saturday
and Sunday. As their normal
weekly hours of 47 hours had already run
out on a Saturday, the full 12 hours they worked on Sundays will also
be overtime at time-and-a-half.
Sundays would have been overtime at
double time only if Sundays were their off days but on their own
evidence their off days were
in the middle of the week.

[52] As off days
are excluded from the calculation under this heading the court will
calculate this overtime over 4 days per week
from Mondays to Fridays.
The court accepts the manager’s evidence that the applicants did
not work during their notice month,
being November 2004. These
overtime calculations will therefore be done for the period from
Sunday 13 June 2004 to Sunday 31 October
2004.

[53] During the
aforesaid period there were 80 weekdays (excluding off days), 20
Saturdays and 21 Sundays. The hours worked overtime
during the said
period were as follows:

Weekdays: 80 x 3½
hours = 280 hours

Saturdays: 20 x
7½ hours = 150 hours

Sundays: 21 x
12 hours = 252 hours

Total 682
hours

[54] The court has
already stated in paragraph [39] that the applicants’ prescribed
hourly minimum wage for this whole period was
P2.55 per hour. The
said minimum wage at time-and-a-half is therefore P3.83 (P2.55 x
1.5). For the aforesaid 682 hours at time-and-a-half
the applicants
are each entitled to overtime payment in the amount of P2612.06 (682
x P3.83).

[55] Because of
the aforesaid criminal sanction for failing to pay the prescribed
overtime wages, the court finds that the respondent
had no right to
withhold the aforesaid overtime payments from the applicants.

Payment for
working on rest days

[56] As stated
above, it was either common cause or not disputed that the applicants
had one day a week off or one rest day a week
as it is also referred
to. The evidence of the applicants is that during this whole period,
although they were entitled to such
rest days, they were never
allowed to take such rest days as they were required to work on such
rest days. During the aforesaid
period of employment according to
the applicants they were therefore entitled to 20 rest days, taking
Wednesdays as the rest days,
which they aver they were never given.
They are therefore claiming overtime at “double
time” for all of these rest days on which
they aver they were required to work.

[57] The manager
testified that the applicants did take some of these rest days off.
He produced his attendance register which indicated
that the
applicants in fact had taken certain rest days off during this period
which will be set out below.

[58] Paragraph 5
of the aforesaid original ministerial order provides as follows:

“An
employee shall earn a rest period at the rate of not less than
24 consecutive hours in the course of each week at the employer’s
discretion to
determine when this period shall be taken.”

It was common
cause or not disputed that the applicants could take one day a week
as their weekly rest period in the middle of the
week.

[59] Paragraph 7
(2) of the said ministerial order provides as follows:

“7
(2) —–, where an employee works on a paid public holiday or rest
period
prescribed by this Order, he shall
be paid an overtime rate of twice his normal hourly rate (otherwise
known as “double
time”).”

(The court’s underlining)

[60] In terms of
section 93 (4) of the Employment Act,any employer who does not grant
such employee the said rest period or does not
pay him double time
for working on such rest period, shall be guilty of a criminal
offence and upon conviction shall be liable to
a fine not exceeding
P1000 or to imprisonment not exceeding 6 months or to both such fine
and imprisonment.

[61] The
applicants gave evidence as to their off days from memory whereas the
manager gave evidence from his attendance register.
The court
consequently finds that the manager’s evidence on this issue is
more reliable and accepts it. The manager testified
that he confirms
his statement which forms part of the respondent’s statement of
defence. In this statement he concedes that during
their period of
employment, without dealing with July 2004, each of the two
applicants had 10 rest day credits as they had taken
the rest of
their rest days off. He gave details of each month but without
mentioning July 2004, which had 4 Wednesdays. As the
manager did not
mention whether or not the applicants had taken these 4 rest days
off, the court will accept their undisputed evidence
that they had
not taken these 4 rest days off. The court consequently finds that
both applicants had worked on 14 (10 + 4) of their
rest days during
the whole period of employment.

[62] The manager
tried to reduce each applicant’s rest day credits by 4 days. He
said he gave the first applicant 3 days off to
go to a funeral and a
day off to go to the landboard. He said he gave the second applicant
4 days off to go to a wedding. The court
finds that the aforesaid
days so given off have nothing to do with rest days and can therefore
not be deducted from rest day credits.
For the aforesaid reasons he
should have given the applicants compassionate leave and /or deducted
it from their annual leave.

[63] As set out in
paragraph [59], an employee is entitled to “double
time” when he works on a rest day. As
stated above the applicants’ prescribed minimum wage was P2.55 per
hour and double time will therefore
be P5.10. They both worked 12
hours on these rest days and should therefore have been paid P61.20
(12 x P5.10) on each rest day
worked. From this amount must however
be deducted what they actually received per day on such rest days.
The first applicant received
P19.23 (P500 ÷ 26) for each of such
days. The court is using 26 as the divisor as the manager contends
that the applicants worked
6 days a week, having had 4 days a month
off. See section 95 (8) of the Employment Act. The second applicant
received P18.27 (P475.26)
for each of such days. The first applicant
was therefore underpaid in the amount of P41.97 (P61.20 – P19.23)
for each rest day
on which he worked. His total underpayment for
rest days worked is therefore P587.58 (14 x P41.97). The second
applicant was underpaid
in the amount of P42.93 (P61.20 – P18.27)
for each rest day on which he worked. His total underpayment for
rest days worked is
therefore P601.02 (14 x P42.93). The respondent
had no right to withhold the aforesaid overtime payments.

Determination

[64] The court
consequently makes the following determination:

1. The termination
of the contracts of employment of the first applicant, Kabo Sebako
and the second applicant, Matthews Molefe, by
the respondent on 30
November 2004 was unlawful as well as wrongful, it being both
substantively and procedurally unfair.

2. In terms of
   section 24 (1) (a) of the Trade Disputes Act, read with sections 135
   and 138 of the Employment Act, the respondent is
   hereby directed to
   pay to the two applicants the following amounts, being compensation:

   1. to the first
      applicant the amount of P1581.28; and

   2. to the second
      applicant the amount of P1606.28.

3. In terms of
   section 20 (1) of the Trade Disputes Act, read with sections 135 and
   138 of the Employment Act, the respondent is hereby
   directed to pay
   to each of the two applicants the amount of P2,612.06, being minimum
   wages overtime unlawfully withheld.

4. In terms of
   section 20 (1) of the Trade Disputes Act, read with sections 135 and
   138 of the Employment Act, the respondent is hereby
   directed to pay
   to the two applicants the following amounts, being payment for
   working on rest days unlawfully withheld:

   1. to the first
      applicant the amount of P587.58; and

   2. to the
      second applicant the amount of P601.02.

5. The respondent is
   hereby directed to pay the amounts, referred to in subparagraphs
   [64] 2,3 and 4 hereof, totalling P9,600.28, to
   the two applicants,
   through the office of the registrar of this court, on or before
   Friday, 21 October 2005.

6. No order is made
   as to costs.

Dated at Gaborone
this day of September 2005.

__________________

D. J. de Villiers

INDUSTRIAL COURT JUDGE

We
agree on the facts:

___________________

E. O. Modise

NOMINATED MEMBER (UNION)

_____________________

B.S. Tsayang

NOMINATED MEMBER (BOCCIM)

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