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THE INDUSTRIAL COURT OF BOTSWANA

HELD AT MAUN

  CASE NO. IC.M 12/2005

IN THE DISPUTE BETWEEN

 

FRANCIS TUNHIRA
………………………. APPLICANT

AND

 

B.L. MOALOSI ENTERPRISES (PTY) LTD ………………………. RESPONDENT

——————————————————————————————–

CONSTITUTION OF THE COURT

D. J. de VILLIERS INDUSTRIAL COURT JUDGE

D.K. MODISAOTSILE NOMINATED MEMBER
(UNION)

P.V.
MOYO NOMINATED MEMBER (BOCCIM)

FOR
THE APPLICANT

IN
PERSON

FOR
THE RESPONDENT

MR B.L. MOALOSI MANAGING DIRECTOR OF RESPONDENT COMPANY

PLACE
AND DATE OF PROCEEDINGS

MAUN
24 NOVEMBER 2005

JUDGMENT

Accumulated
off days if not taken – then payment must be double pay.

Damage
to employer’s property not an authorised deduction from salary –
not even with employee’s consent.

Employee
left without giving notice – liable to pay employer one months
notice pay in lieu of notice – employer entitled to deduct
this
notice pay from any amount he owes the employee.

Introduction

[1] This
matter was set down for a default hearing at Maun on 24 November 2005
as the respondent had failed to file its statement
of defence. On
the day of the hearing the respondent’s managing director appeared
at court and applied for leave to file the respondents’
statement
of defence. The court allowed him to bring an oral application for
condonation of such late filing. The court was satisfied
that he had
shown good cause and condonation was granted. As the main case for
the day had been settled, the court ruled that this
default hearing
could then proceed as an opposed hearing.

[2] The
applicant had cited the respondent as being Golden Bridge Enterprises
(Pty) Ltd t/a B.L. Moalosi Enterprises (Pty) Ltd. The
managing
director raised a point in limine
that there is no such company as cited by the applicant. He said
Golden Bridge Enterprises (Pty) Ltd is a Chinese company which
has
absolutely nothing to do with his company, B.L. Moalosi (Pty) Ltd.
He said the only dealings he did have with this Chinese company
was
that he bought a number of second hand buses from them and also
“borrowed” a
few bus drivers, including the applicant, for a few months from them.

[3] He
said that some months after the applicant was dismissed by this
Chinese company, he and the applicant entered into a contract
of
employment on 25 June 2003. For that reason he was prepared to agree
to the amendment of the citation of the respondent to the
name of his
company, B.L. Moalosi (Pty) Ltd. After the court explained all this
to the applicant again, he had no objection to such
amendment and the
court so ruled.

Applicant’s
evidence

[4] The
applicant testified that he started working for Golden Bridge
Enterprises (Pty) Ltd as a bus driver in 1997. On 1 February
2001 he
received the following letter of dismissal, which was signed by mr K.
Liu, a director of the said Chinese company.

“Re:
notice of terminating contract of employment

Dear:
Francis Tunhira

This
is serving to give you one-month notice to terminate the contract of
employment with above company and determine the new management
(B.L.
Moalosi). And the new management will also determine you. So that
after the one-month notice, you and the new management
may decide
whether a new employment contract can be made.”

During
cross-examination the applicant conceded that he had not shown this
letter to mr Moalosi. He could not say why he had not
shown it to
him.

[5] He
said his last pay at the Chinese company was P1800 per month and as
from 1 March 2001 he started driving buses for the respondent
and the
managing director also paid him P1800 per month up to December 2001.
He said that as from January 2002 mr Moalosi started
deducting
amounts from his salary, saying it was for two bus tyres the
applicant had damaged. The applicant reported this to the
district
labour officer. There mr Moalosi promised to repay the deductions
but never did.

[6] The
applicant said that because of this he resigned from the respondents’
employment and started working for Gubagu Express
(Pty) Ltd as a bus
driver as from 1 March 2002. He said he unfortunately did not keep
a copy of this resignation letter.

[7] Some
months later when his work and residence permits were about to
expire, he asked mr Moalosi for a release letter, releasing
him from
the respondent’s service. He said mr Moalosi said he could not
give him one because he is still working for this new
company on the
respondent’s permits.

[8] The
applicant said that he went back to the respondent and started
working for the respondent company as from 1 March 2003 under
a new
work permit. He could not explain why this permit states that he
started working for the respondent company as from 25 June
2003. He
said when he entered into this new contract with the respondent
company, mr Moalosi said he could only pay him P1600 per
month. The
applicant said he was not happy about this but he reluctantly agreed
to it because he had no choice.

[9] The
applicant stated that on 27 October 2004, mr Moalosi said to him that
as he had many accumulated off days he should take 10
of those off
days then. He said he went home and on 11 November 2004 he wrote the
following letter to mr Moalosi addressing it to
the manager, Golden
Bridge Enterprise, because he thought that mr Moalosi had bought that
company:

“Dear
Sir/Madam

I
am applying for two months unpaid leave, starting from the 12

November
2004. The reason why I have applied for this leave is

I
want to solve my problems, which I cannot manage to do if I am

at
work.”

He
explained that he wanted this unpaid leave because he had bought a
combi and he wanted to use it as a taxi during these 2 months.
He
said mr Moalosi first refused to give him this unpaid leave but later
in the month Mr Moalosi’s manager came to him an agreed
that he
could take this unpaid leave.

[10] He
said he took this unpaid leave from 12 November 2004 till 12 January
2005. He further stated that mr Moalosi refused to take
him back
after 12 January 2005, saying that he is no longer in the
respondent’s employment. During this unpaid leave mr Moalosi
went
and reported him to the labour officer, saying that he was using the
respondent’s permits to run his taxi business. The applicant
said
when he was called by the labour officer, he denied this. The court
rejects this evidence as utter nonsense because the applicant
could
not produce any permits in his name nor did he claim that he had such
permits. He was using the respondent’s permits.

[11] The
applicant said that by refusing to take him back, the respondent in
fact dismissed him. He said this was an unfair dismissal
and he is
now claiming the following from the respondent:

a) Payment
of P200 for every month the respondent had reduced her salary from
P1800 to P1600.

2. Payment
   for working on public holidays

2. Overtime
   payment for all the hours he worked overtime

2. Payment
   of the balance of his off days that he never took.

2. Payment
   of accrued leave pay.

2. Payment
   of the said deductions from his salary

The
respondents’ version

[12]
Two witnesses testified on behalf of the respondent. It was mr
Moalosi, the managing director and Mr Fly, the respondent’s
manager. The managing director testified that he bought a number of
second hand buses from Golden Bridge Enterprises. He said that
he
was then short of drivers and he then “borrowed”
some drivers, including the applicant, from this Chinese company. He
said what he means by “borrowed”
is that these drivers were on loan to him. They remained the
employees of Golden Bridge Enterprises. The managing director would
pay the salaries of these drivers to Golden Bridge Enterprises and
they would then pay the drivers. This is what made the applicant
think that the respondent had bought Golden Bridge Enterprises
because he said when he was working for the respondent his payslips
were still from Golden Bridge Enterprises. During this borrowing
period the applicant used his work permit issued in the name of
Golden Bridge Enterprises. This was conceded by the applicant.

[13]
The managing director said that towards the end of 2001 the applicant
was still working for him in terms of the aforesaid agreement
and he
kept on paying him P1800 per month. He said that the applicant
damaged two tyres of the bus by driving when the tyres were
not
properly inflated. He said that applicant agreed that he could
deduct P250 from his salary for 4 months. P250 was deducted
at the
end of January 2002 and P250 at end of February 2002.

[14] He
said after receiving his February 2002 wages the applicant just
disappeared. He said he thinks the reason why the applicant
just
left, was because he had also damaged the engine of a Mercedes bus.
He denied that he received a resignation letter in February
2002 from
the applicant. He later found out that the applicant was working for
Gubagu Express, another bus company. He said the
applicant worked
for that bus company for over a year and then came back and asked for
employment with the respondent. The managing
director said that he
was not very happy with the applicant’s performance as a driver
because he did not look after his buses properly.
He told the
applicant that he could therefore not offer him more than P1600 per
month, which he said the applicant gladly accepted.

[15] The
managing director then applied for a new work permit for the
applicant in the respondent’s name. The applicant’s said
work
permit was issued on 25 June 2003 and he said on that date the
applicant started working for him for the first time as his employee.
He said the applicant started on P1600 per month and at the end of
August 2003 he increased it to P1650 per month and it remained
like
that till the applicant left. The applicant did not dispute this.

[16] He
said towards the end of October 2004, during the school holidays, he
had his buses serviced and checked to get them ready
for the
Christmas peak period. He then did not have much work for his
drivers. As the applicant had more accrued off days than
any other
driver, he asked the applicant to take 10 of these accrued off days
at that time, which the applicant gladly did as he
said he had some
private business to attend to. During these 10 days the applicant
asked the managing director to help him complete
an application form
for a bank loan as he wanted to buy a combi, which the managing
director then did.

[17] The
managing director said that during these 10 off days he received that
letter from the applicant, requesting 2 months unpaid
leave. He said
he could not approve this 2 months unpaid leave because of the busy
Christmas peak period, lying ahead. He therefore
told the applicant
that this unpaid leave was not approved, but despite this unpaid
leave not having been approved, the applicant
never returned to work
after the said 10 days.

[18] The
managing director then discovered that the applicant was running his
combi taxi business on the work permit he has for working
for the
respondent. He therefore notified the department of labour and asked
them to revoke this work permit as the applicant was
no longer
working for him.

[19] He
said that the applicant’s 10 days off were up on 8 November 2004
and that he did not report for duty the next day. He just
started
his unauthorised 2 months unpaid leave and after the two months he
never returned to work. He kept on driving his combi
taxi. This was
confirmed by the respondent’s manager. The managing director said
that the applicant by failing to report for
work on 9 November 2004
or thereafter, must be regarded to have absconded on 8 November 2004.

[20] The
managing director said that as the applicant just left his employment
without giving notice, the respondent has now filed
a counterclaim
against the applicant for payment of one month’s notice pay in lieu
of the notice which the applicant should have
given.

Absent
from work without permission

[21] The
court found the applicant to be an unreliable witness, not only
because he was untruthful on certain aspects, but because
he was
confused and ignorant about the agreements entered into between mr
Moalosi and the Chinese company regarding only the sale
of the buses
and the loan of drivers to the respondent company. The court found
the managing director and the manager of the respondent
company,
reliable witnesses. The probabilities, especially the evidence
regarding work permits, favour their version. Where there
is a
contradiction between their evidence and that of the applicant, the
court has no hesitation in accepting their evidence.

[22] The
applicant testified that mr Moalosi initially refused to grant him 2
months unpaid leave, but a few days later the respondent’s
manager,
mr Fly, came to see him and told him that he could take the 2 months
unpaid leave. This is denied by the manager, which
denial the court
accepts, as it is improbable that the manager would overrule the
decision of the managing director, who also said
that he had not
changed his mind. The court finds that the managing director had a
very good reason for not granting the said 2
months unpaid leave. It
was because of the busy Christmas transport peak period that was
lying ahead. The court therefore finds
that the applicant was absent
from work as from 9 November 2004, without the prior consent of the
respondent.

[23] The
applicant stated that his 2 months unpaid leave was from 12 November
2004 to 12 January 2005. During this time mr Moalosi
withdrew the
applicant’s work permit, which indicated the respondent as being
his employer. He said after 12 January 2005 he went
back to the
respondent to work, but the managing director refused that he could
start work again, saying that he is no longer an
employee of the
respondent. The applicant said he was therefore dismissed on 13
January 2005.

[24] For
the same reasons the court rejects the applicant’s evidence and
accepts the evidence of the managing director and the manager
that
the applicant never came back to report for work on 13 January 2005
or any other time thereafter. The court therefore finds
that the
applicant was not dismissed by the respondent, but that he left the
respondent’s employment without giving any notice.

[25] In
terms of subsection 21 (2) of the Employment Act (cap 47:01) being
absent from work without the prior consent of the employer
is a
breach of contract. The said subsection provides as follows:

“(2) The
employee shall be deemed to be in breach of a contract of employment
if he is absent from work without the prior consent of
his employer
or his employer‘s representative unless he has reasonable cause for
such absence and, as soon as it is reasonable
practicable to do so,
informs his employer or his employer’s representative of that
cause.”

[26]
The aforesaid deeming provision has two legs that have to be
satisfied before the breach of contract can be deemed. On the first
leg the court has already found that the applicant had no prior
consent to be absent from work as from 9 November 2004. As regards
the second leg of “reasonable cause for such absence”
the court finds that the applicant believed, erroneously, that he did
have prior consent for his absence, and therefore he did
not even
bother to inform the respondent of the cause of his absence. The
court therefore finds that no reasonable cause for such
absence was
shown by the applicant. The court further finds that the applicant
was therefore in breach of his contract of employment,
which means
that he was not dismissed but left on his own.

[27] The
court will now deal with the applicant’s six claims against the
respondent and will then deal with the respondent’s counterclaim.

Reduction
in salary

[28] The
applicant stated that he started working for the respondent again on
1 March 2003 and that the managing director, just unilaterally
reduced his salary by P200 per month from P1800 to P1600. He said he
agreed to accept P1600 per month because he had no choice.
He said
that he now wants payment of this P200 per month from 1 March 2005
till he was dismissed by the respondent.

[29]
The managing director testified that the applicant started working
for the respondent, as its employee, for the first time on
25 June
2003, which is corroborated by the applicant’s work permit. Before
that, when the applicant drove buses for him, he was
on loan from the
said Chinese company. The managing director said that as he was not
very happy with the applicant as a driver because
he did not look
after his buses properly, he offered him P1600 per month which he
accepted.

[30] As
the applicant said he agreed to P1600 per month, even if he had added
because he had no choice, the court finds that this
was an agreed
salary and he has no claim for alleged underpayment of salary.

Overtime
and working on public holidays

[31) The
applicant said he worked on public holidays, except when it fell on
one of his off days, for which he was not paid double
pay. He also
worked overtime for which he was not paid. The managing director
stated that the respondent owes the applicant nothing
for alleged
overtime and working on public holidays. He said he had an agreement
with the drivers that they would be paid P20 extra
per day which will
make up for any double payment for working on public holidays. The
court accepts the applicant’s evidence that
the said P20 per day
when they are on the road, was a food allowance, as this is a far
more probable explanation.

[32] Even
if the court had accepted the managing director’s version, such
agreement would have been null and void in terms of section
37 of the
Employment Act, as it is less favourable to the applicant than the
provisions of section 94 of the Employment Act, which
states that
double pay shall be paid for working on a public holiday. The court
also accepts the applicant’s evidence that he
was not paid for
working overtime.

[33]
Unfortunately the court cannot make any order under these two claims
as the applicant has failed to prove these claims. He was
unable to
give acceptable particulars of overtime hours and of public holidays
he had worked on.

Accrued
leave pay

[34] The
applicant had no idea what he was talking about when it came to
accrued leave pay. He said the labour officer told him that
he was
entitled to 18 paid leave days a year. He said he now wants payment
for 72 leave days which he has accumulated over 2 years.
The
managing director said that the applicant was entitled to 15 paid
leave days a year. He conceded that the applicant had taken
no leave
during the period he had worked for him.

[35] 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. They also regulate
other
aspects, such as hours or 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.

[36] The
minister has issued several such orders, inter alia,
also an order regulating the
wages in the garage, motor and road transportation trades. The
respondent’s business falls under the
road transportation trade and
therefore this ministerial order is applicable to the respondent’s
business.

[37] Paragraph
8 of this order provides as follows:

“8.
An employee shall be entitled to paid leave at the rate of at least
15 working days in respect of each period of 12 months’
service
calculated at the rate of one-and-a-quarter working days for every
completed month of service.”

The
applicant was therefore entitled to 15 paid working days leave in a
year or 1.25 days per month.

[38] In
terms of section 98 (6) (a) of the Employment Act, where a contract
of employment is terminated by either party, the employer
shall
pay to his employee, his/her
basic pay in respect of all accumulated leave. In terms of section
98 (6) (b), when calculating accrued
leave, a part of a month will be
reckoned as a full month. The court has already found that the
applicant worked for the respondent
from 25 June 2003 to 8 November
2004, which is for a period of 16 months and 14 days. His accrued
leave must therefore be calculated
over a period of 17 months, which
amounts to 21.25 (17 x 1.25) accrued leave days.

[39] It
was not disputed that when the applicant left the respondent’s
employment his salary was P1650 per month. In terms of paragraph
4
of the said ministerial order the normal working hours for an
employee in the transportation trade is 9 hours per day and the
normal
working week is 5 days per week. In terms of section 95 (8)
of the Employment Act, a 5 day working week converts to a 22 day
working
month. To calculate an employee’s daily rate of payment
his monthly rate of payment must therefore be divided by 22. On this
basis the applicant’s daily rate of payment was P75.00 (P1650 ÷22).

[40] The
applicant is therefore entitled to payment of the amount of P1593.75
(P75 x 21.25) as accrued leave pay.

Accumulated
off days

[41] The
applicant stated that he had 26 accumulated off days when he was
asked to take 10 of these days off, which he did. He said
he now has
16 accumulated off days left for which he wants to be compensated.
This is not in dispute as the managing director agrees
with it.

[42] In
the said ministerial order these off days are referred to as weekly
rest periods in paragraph 5 which provides that an employee
shall
earn a rest period at the rate of not less than 24 consecutive hours
in the course of each week. An employee who works on
a rest period
shall be paid at double time in terms of paragraph 7 (2) of the said
order. In terms of section 94 of the Employment
Act, an employee,
who has worked on his rest period has the choice of being paid double
time or having another working day off.

[43] In
the present case the applicant must have worked on 16 of his rest
periods for which he was not paid double pay but given 16
other days
that he could take off, but at the time he left the respondent’s
employment, he had not as yet taken. As he can no
longer take these
16 days off, the court finds that he is now entitled to payment of
these 16 off days at double pay.

[44] The
applicant is consequently entitled to payment for his 16 accumulated
off days in the amount of P2400.00 (P75 x 2 x 16).

Unauthorised
deductions

[45] The
applicant testified that at the end of January 2002 the respondent
deducted P800 from his salary, saying that he had damaged
2 bus
tyres. In February 2002 respondent deducted a further P200 from his
salary, which amounts to a deduction of P1000.00. He
said he never
consented to this deduction and he now wants the respondent to repay
him this amount of P1000.

[46] The
managing director said that it is correct that he did ask the
applicant to pay for two bus tyres which he had damaged. He
said the
damage was P1000 and the applicant agreed that the respondent could
deduct it from his salary in 4 instalments of P250 each.
He then
deducted P250 from the applicant’s salary at the end of January
2002 and also at the end of February 2002. Because the
applicant
left at the end of February to go and work for another bus company,
he managed to get only P500 from the applicant and
he denies
deducting a P1000. He produced a copy of the applicant’s payslip
for January 2002, which shows that only P250 was deducted.
The
managing director said the applicant consented to pay for this damage
by way of deductions from his salary and therefore he
has no claim
against the respondent for payment of this P500.

[47] The
court finds that the probabilities favour the respondent’s version
and finds that only P500 was deducted from the applicant’s
salary
for the alleged damage to two bus tyres.

[48] 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 damage to an employer’s
property is
definitely not an authorised deduction. 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).

[49] It
is therefore immaterial whether the applicant consented to such
deductions or not. The court finds that the said deduction
was an
unauthorised deduction as it was unlawful and the applicant is
entitled to repayment of the amount of P500.

The
respondent’s counterclaim

[50] The
managing director stated that as the applicant just left without
giving notice and as the applicant was paid monthly, the
applicant
now owes the respondent one months notice pay in lieu of notice. The
court has already found that the applicant was in
breach of his
contract of employment by being absent from work without the prior
consent of his employer as from 9 November 2004.
As to the result of
such a breach of contract, the provisions of section 22 of the
Employment Act then comes into play and provides
as follows:

“Subject
to any agreement to the contrary, the party in breach of a contract
of employment whereby or as a direct result of which employment
under
the contract ceases shall be liable to pay to the other party a sum
equal to the amount he would have been liable to pay to
the other
party in order to terminate the contract in accordance with section
19 (a) or (b), as is appropriate.”

[51] In
this case the applicant’s contract of employment did cease as a
direct result of the said breach of contract and therefore
the
provisions of section 19 (a) will apply. This section provides that
instead of giving the prescribed notice a party may-

“ (a) terminate
the contract without giving notice by paying to the other party a sum
equal to the amount of basic pay which would otherwise
have accrued
to the employee during the minimum lawful period of such notice;”

In
terms of section 18 (2) of the Employment Act, the minimum length of
any notice is one week if the employee is paid weekly, 14
days if the
employee is paid fortnightly and one month if the employee is paid
monthly.

[52] As
the applicant was paid monthly, the court consequently finds that by
invoking the provisions of the aforesaid sections 18
(2), 19 (a) and
22 of the Employment Act, the applicant is liable to pay to the
respondent an amount equal to his one month’s basic
pay as notice
pay in lieu of notice. As stated above the applicant’s basic pay
at the time his contract of employment was terminated,
was P1650.00
per month. The respondent is therefore entitled to payment of
P1650.00 being notice pay in lieu of notice.

[53] Section
77 of the Employment Act provides for payment of wages and other
payments to an employee by the employer where the employee
has
terminated his contract of employment. Subsection (ii) of the
proviso to section 77 (2) provides as follows:

“(ii)
the employer may deduct, subject to any order made by a court or the
Commissioner to the contrary, from the total wages and
any other
payments which may be due to the employee such sum as the employee is
liable to pay by virtue of section 19 (a) or (b).”

This
means that from any amount an employer still owes an employee for
wages or any other payment, the employer is allowed to deduct
the
amount the employee is liable to pay as notice pay in lieu of notice.
In this case the amount the respondent has to pay to the
applicant
is P4493.75 (P1593.75 ₊ P2400.00 + P500.00), which is more
than the P1650.00 the applicant has to pay to the respondent. In
terms of the provisions of the
said subsection 77 (2) (ii) the
respondent is entitled to deduct the said amount of P1650.00 from the
amount of P4493.75. The respondent
therefore still owes the
applicant P2843.75 (P4493.75 – P1650.00).

Determination

[54] The
court consequently makes the following determination:

1. In
terms of section 25 (1) of the Trade Dispute Act, read with section
98 (6) of the Employment Act, the court finds that the respondent
is
liable for payment to the applicant in the amount of P1593.75, being
accrued leave pay withheld.

2. In
terms of section 25 (1) of the Trade Disputes Act, read with section
94 of the Employment Act, the court finds that the respondent
is
liable for payment to the applicant in the amount of P2400.00, being
double payment for off days not taken.

3. In
terms of section 25 (1) of the Trade Disputes Act, read with
sections 79 and 80 of the Employment Act, the court finds that
the
respondent is liable for payment to the applicant in the amount of
P500.00, being unauthorised deductions from his salary.

4. In
terms of section 18 (2), 19 (a) and 22 of the Employment Act, the
court finds that the applicant is liable for payment to the
respondent in the amount of P1650.00 being notice pay in lieu of
notice.

5. In
terms of section 77 (2) (ii) of the Employment Act, the respondent is
entitled to deduct the said amount of P1650.00 from the
amount of
P4493.75, leaving a balance of P2843.75.

6. The
respondent is therefore hereby directed to pay to the applicant, the
amount of P2843.75, through the office of the Regional
Labour Officer

at Maun, on or
before Friday 24 February 2006.

5. No
order is made as to costs.

Dated
at Gaborone this day of January 2006

________________________

D.J. de Villiers

INDUSTRIAL
COURT JUDGE

We
agree on the facts:

___________________________

P.V. Moyo

NOMINATED
MEMBER (BOCCIM)

_______________________________

D.K. Modisaotsile

NOMINATED
MEMBER (UNION)

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