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R

IN
THE INDUSTRIAL COURT OF BOTSWANA

HELD
AT GABORONE

CASE NO. IC. 4/2005

IN
THE DISPUTE BETWEEN

DANIEL
SEKAO & ANOTHER ……………………….
APPLICANT

AND

THE OKAVANGO PUB & RESTAURANT ……………………….
RESPONDENT

CONSTITUTION
OF THE COURT

M.
EBRAHIM-CARSTENS INDUSTRIAL COURT JUDGE

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

R.
TSHEPHE NOMINATED MEMBER (UNION)

FOR
THE APPLICANT

IN
PERSON

FOR
THE RESPONDENT

MR.
MMEKWA LANGWANI, MMEKWA ATTORNEYS

PLACE
AND DATE OF PROCEEDINGS

GABORONE

21^st MARCH 2006

R

Employer
alleging that employee contracted out of statutory provisions –
Allegation that employee gratuitously agreed to work overtime
and on
Paid Public Holidays for no payment – Section 37 of the Employment
Act whereby certain terms of contract of employment to
be void –
General principle that one may renounce a law made for his special
benefit – Such renunciation not permissible where
matters of public
policy or public interest involved.

JUDGMENT

[1] The applicant was employed
by the respondent as a chef at P1,500.00 per month from 6^th
March 2004 until his dismissal on 23^rd
June 2004. He is claiming three months wages as compensation for
unfair dismissal, wages for five Paid Public Holidays and overtime
allegedly due to him.

[2] The respondent in its plea
avers that:

“The applicant was not denied
payment for the public holidays mentioned. At his suggestion he and
the rest of the staff had volunteered
to work on public holidays and
without overtime because the restaurant, which he helped to
establish, did not yet have business,
having started on the 6^th
March 2004. In fact, for one month before the restaurant started,
he helped to recruit and train staff for more than two weeks
in
preparation for the opening of the restaurant without any payment to
him. Initially he was proud of the restaurant and wanted
it to
succeed. The applicant should not be allowed to claim overtime now
only because our relationship became bad.”

[3] The respondent also contends
that the applicant’s dismissal was substantively fair since he
failed to account for a shortage
of takings of about P800.00 on 22^nd
June 2004. The respondent however conceded that the dismissal was
procedurally unfair.

[4] On my perusal of the
papers, I discerned this to be a simple case. At the commencement of
the proceedings therefore, I endeavoured
to direct the parties on the
appropriate law. In particular, I pointed out the provisions
relating to overtime, Paid Public Holidays,
and more especially
Section 37 of the Employment Act Cap. 47:01. Nevertheless, the
respondent persisted in the view that the applicant
was not entitled
to any payments for public holidays and overtime because of an
arrangement between the parties whereby the applicant
allegedly
gratuitously offered his services voluntarily and for no charge.

Statutory Entitlements

[5] I shall instantly set out
the relevant law regarding the applicant’s entitlements as an
employee. The general provisions regarding
rest periods, hours of
work, holidays and other conditions of work are contained under Part
VIII of the Employment Act (i.e. Sections
93 to 100). Part VII of
the Act (Sections 73 to 82) deal with protection of wages and other
payments due to an employee and inter
alia, fixes wage periods and
time of payment, prohibits withholding of wages and unauthorised
deductions from wages, and limits assignment
and attachment of wages.

[6] Section 73 of the Employment
Act states that:

“The
Minister may, after consultation with the registered organizations
of employers and employees directly concerned, if such
exist, by
order published in the Gazette, exclude from the application of all
or any of the provisions of this Part the wages
paid to categories
of employees whose circumstances and conditions of employment are
such that the application to them of all
or any of the said
provisions would, in the opinion of the Minister, be inappropriate.”

[7] Various regulations have
been promulgated for different categories of employees. The applicant
falls under the Regulation of Wages
(Hotel, Catering, and
Entertainment Trades) Order 1980. Regulation 2 (1) states that:

“2. (1)
This Order shall apply to all persons employed in any undertaking
which consists of the carrying on, whether for profit
or not, of one
or more of the following activities –

(a) the
supply of food or drink for premises licensed under the

Trade
and Liquor Act;

(b) the provision of living
accommodation for guests or lodgers; or

(c ) the provisions of
entertainment.

(2) In this Order “undertaking”
includes any person, firm, business, company or club and the
activities of any body, whether
corporate or unincorporate, whether
carried on by way of trade not: ….”

[8] Regulation 4 of said Order
states that no person shall be required to work other than as
provided for under paragraph 7 (3), more
than eight and a half hours
per day or 51 hours in any working week of six days. An employee
shall also earn a rest period of not
less than 24 consecutive hours
in the course of each week. Regulation 7 (1) provides that any
overtime worked shall be paid at the
rate of the employees ‘normal
hourly rate plus one-half of such rate (otherwise known as “time
and-a-half”)’. When an employee
works on any paid public holiday
or rest period, he shall be paid at the overtime of ‘twice his
normal hourly rate (otherwise known
as “double time”).’

Paid Public Holidays

[9] The Paid Public Holidays
applicable to the applicant are New Year’s Day, Good Friday, Easter
Monday, President’s Day, day
following President’s Day, Botswana
Day, 1^st
October, and Christmas – See Regulation 6 of the said Regulations
for the Hotel, Catering and Entertainment Trades.

[10] I shall now apply the facts
of this case to the law set out above. The applicant claims the
following days:

09/04/04 Good Friday

10/04/04 a Public Holiday

12/04/04 Easter Monday

01/05/04 Labour Day

20/05/04 Ascension Day

It is clear from the
aforementioned regulation that the applicant is only entitled to Good
Friday and Easter Monday as paid Public
Holidays at double time. He
is therefore due two days wages for these. Applying the divisor of
26 in terms of Section 95 (8) of
the Employment Act, this equates to
P115.38 (P1,500.00 ÷ 26 x 2).

Overtime

[11] As regards overtime, the
respondent argued that this was not part of the contract of
employment, but a verbal private arrangement
that existed between the
parties premised on the cordial and friendly relationship between the
applicant and Mrs. Maswabi for the
former to gratuitously work
overtime without pay. If such be the case, then this would not be a
‘trade dispute’ in terms of
the Trade Disputes Act. The
respondent has taken no such exception or point. This argument is
therefore dismissed.

[12] In any event, friendship
aside, the working relationship between the parties was that of
employer and employee. Contracts of
employment may be oral or in
writing, express or implied (Section 14 (1) of the Employment Act. I
fail to see how anything touching
upon conditions of service could be
anything other than part and parcel of an employment contract.

Contracting out

[13] Subsequently in her
evidence, Mrs. Maswabi said that in any case, the payment for
overtime was conditional upon the respondent
making profit. As the
business made no profits, no overtime was payable. An employees’
wages and entitlements may not be compromised.
In 1997 Botswana
ratified the Protection of Wages Convention C.95 and our statutory
provisions run in tandem with the principles
therein. Moreover,
sections 37 and 38 of the Employment Act clearly state that:

s.37 Certain terms of contract
of employment to be void

Where a contract of employment,
whether made before or after the commencement of this Act, provides
for conditions of employment
less favourable to the employee than
the conditions of employment prescribed by this Act, the contract
shall be null and void to
the extent that it so provides.

s.39 Offence where contract
contravenes this Part

Any employer who enters into a
contract of employment or a collective labour agreement containing
terms contrary to the provisions
of this Act shall be guilty of an
offence and liable to the penalties prescribed by section 151(c).

[13] Regulation 9 of the
applicable Order too reads:

“9.
The wages and conditions of employment in force between employers
and employees at the commencement of this Order shall not
be altered
for the worse in respect of employees but to the extent that the
same are not in conflict with this Order and the parties
thereto
shall be subject and entitled to the benefits of the provisions of
this Order.”

[15] All the aforesaid statutory
provisions are couched in imperative terms and it is trite law that
the word “shall” in Botswana
statute cannot mean anything else
other than “shall”; and that “may” is permissive and
empowering. – See G.
Moroka vs. Feedem
Catering Services
Botswana (Pty) Ltd
Case No. 137/96 dated 23^rd
August 1996. See also Charlotte
Mosala vs. Car World
Case No. IC. 21/97.

[16] Although the applicant
denies it, the respondent contends that he contracted out of the
rights bestowed upon him by law. In
a matter where the Court had to
decide whether an employee may waive his rights to strict compliance
with the imperative provisions
on probation contained in Section 20
of the Employment Act; (Victor Mamorare vs. Botswana
Building Society Case No. IC. 277/02 dated 17^th June
2004 (J1078): I said:

“Waiver/acquiescence by
employee

Could the Applicant be seen to
have waived his right to strict compliance with Section 20 (1)? I
think not.

In the Connie McLean vs. CCC
case at page 19 I said:

“There is nothing contained in
the aforesaid Section 20 (3) which permits an employee to waive his
rights to the written notification
of the length of his probationary
period prior to entering into a contract of employment. In the
matter of Kgosiemang Mogopi vs. Nata Timber Industries (Pty) Ltd
Case No. IC. 194/96 dated 31^st July 1997, Hardisty
A.J. said at page 18 of the typed record:

“Whilst the Court accepts the
general principle that any one may renounce a law made for his
special benefit (quillibet potest renuntiae
juri pro se introducto)
such renunciation is not permissible where matters of public policy
or Public interest are involved. {S.A. Eagle Insurance Cp. Ltd
vs. Bavuma 1985 (3) SA 42; Food and Allied Workers Union and Others
vs. Virginia Milling Co. 1992 LCD 37 (IC}”

Section 20 (4) of the Employment
Act states that:

“Any person who contravenes
this Section shall be guilty of an offence and liable to the
penalties prescribed by Section 172 (b).”

The prescribed penalty is a fine
not exceeding P1,000.00; or a term of imprisonment not exceeding 6
months; or both.

That the Legislature has deemed
it fit to include a penal provision under Section 20 is pertinent.
When the Legislature removed the
requirements for the prospective
employer to advise the prospective employee of the effect of
Subsection (2) by the 1992 Amendment;
the legislature left this penal
provision intact. This suggests to me that this is a matter of
public interest or public policy.

I find therefore that the
Applicant could not and did not waive his right to strict compliance
of Section 20 (3).”

[18] Section 38 makes it an
offence for an employer to enter into a contract of employment
containing terms contrary to the provisions
of the Act. The
legislature has deemed it fit as a matter of public interest and
policy, and in accordance with its international
obligations, to
protect workers’ wages. Even if I were to accept the respondent’s
evidence, I find the applicant could not waive
his rights to
overtime.

[19] The applicant’s claim
however was imprecise and vague. He claimed overtime for the whole
of March and April on the basis he
worked every single day from 8.00
a.m. to 23.30 p.m. although he did not challenge Maswbi’s evidence
they had two hours off. He
insisted he was a professional chef
although he had only a Junior Certificate and no other
qualifications. He said he received on
the job training at several
places. Section 2 (3) of the Employment Act provides that 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 professional
staff or into some
other category of persons of the same or a similar status.

[20] It does not appear to me
that the applicant is a professional chef. In any event I find I
need not decide this point as the
applicant’s unquantified claim
for overtime is vague, imprecise and not proved. This claim is
therefore not sustainable.

Unfair dismissal

[21] Mrs. Maswabi said the
applicant, together with the cashier, was dismissed for serious
misconduct in that on 22^nd June 2004, he failed to account
for the portions of raw food in relation to the sales of food
prepared and sold to customers and
outside catering. She said the
applicant did not properly record the number of orders and the
cashier failed to accurately record
money received from the waiters.
As a result, food of a sales value of P800.00 was missing. She
summarized that this failure to
keep proper records was deliberate
so, that the applicant and cashier could steal the revenue.

[22] It is trite law that a
dismissal for misconduct must be substantively and procedurally fair.
This means that there must be a
valid and fair reason for the
termination of the contract of employment and that prior to such
dismissal, the employer must conduct
a fair disciplinary enquiry to
ascertain that the employee concerned committed the alleged
misconduct.

[23] The guidelines for a fair
disciplinary enquiry were set out in the locas classicus Michael
Phirinyana vs. Spie Batignolles Case No. 18/94 dated 6 January
1995 (J4). Since they have been set out in so many countless
judgments of this court, I need not repeat
them here.

[24] It is conceded that there
was no disciplinary enquiry. Mrs. Maswabi however said she gave the
applicant an opportunity on 22^nd and 23^rd June
2004 to explain what could have gone wrong. The applicant denies
this and says Mrs. Maswabi simply called a full staff meeting
on 23^rd
June 2004, shouting and complaining of the money. She informed this
meeting that she had decided to dismiss the chef and cashier
in view
of her summations.

[26] An employer may not dismiss
an employee on mere suspicion of theft – See Onalenna Mokunki
vs. Spar Supermarket Maun Case No. IC. 53/95 dated 27^th
February 1996 (J43) and M. Banyatsang vs. North West District
Council Case No. IC. 42/98 dated 31^st December 1998
(J260).

[27] In the circumstances the
court finds that the applicant’s dismissal was both substantively
and procedurally unfair. In terms
of Section 24 of the Trade
Disputes Act, the applicant may therefore be entitled to
compensation.

Compensation

[28] In assessing the amount of
appropriate compensation to be paid, the court may consider the
following factors under Section 24
(4):

1. The actual and future loss
   likely to be suffered by the employee as a result of the wrongful
   dismissal;

2. the age of the employee;

3. the prospects of the employee
   in finding other equivalent employment;

4. the circumstances of the
   dismissal;

5. the acceptance or rejection by
   either the employer or employee of any recommendation made by the
   Court for the reinstatement of
   the employee;

6. Whether or not there has been
   any contravention of the terms of any collective agreement or any
   law relating to employment by the
   employer or the employee;

7. The employer’s ability to
   pay.

[29] I shall considers factors
(a) to (c) together. The applicant is a youthful “chef” although
he has no formal qualification
for the trade. His prospects should
be good. His unchallenged testimony is that he was induced into
giving up a good job at News
Café at

the Syringa Lodge in order to
work for the respondent. He suffered loss as he was unemployed for
some four months.

[30] The circumstances of the
dismissal are that it was both substantively and procedurally unfair.
This factor favours the applicant.

[31] Factor (f) is relevant and
favours the applicant because the respondent contravened the law
relating to the employee’s entitlements.
As regards factor (g),
the respondent has not told the court that it is impecunious or
unable to pay any award.

[32] In taking the several
factors into account, the court finds that compensation of 3 months
wages is not inappropriate. It is
so awarded.

Determination

In all the circumstances of this
case, the court makes the following determination:

1. The respondent unlawfully
withheld the applicant’s entitlements to Paid Public Holidays and
alleged overtime.

2. The applicant has however not
proved any claim for overtime.

3. The respondent is hereby
directed to pay the applicant the sum of P115.38 being Paid Public
Holidays worked but not paid at double
time.

4. The respondent is further
directed to pay the applicant the sum of P4,500.00 (3 x P1,500.00)
being compensation.

5. The respondent is further
directed to make payment of the aforesaid sums, in all P4,615.38
to the applicant through the office of the Registrar of the
Industrial Court on or before Friday 26^th May 2006.

6. No order is made as to costs.

Dated
at Gaborone this day of April 2006.

……………………………………

M.
EBRAHIM-CARSTENS

INDUSTRIAL
COURT JUDGE

We
agree on the facts:

………………………………………….

M.B.S.
LESELWA

NOMINATED
MEMBER (BOCCIM)

….…………………………………….

R. TSHEPHE

NOMINATED
MEMBER (UNION)

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