IN THE
INDUSTRIAL RELATIONS COURT OF MALAWI

BLANTYRE
REGISTRY

MATER NO. 98 OF
2001

BETWEEN:

F.G.
WANDALE……………………………………………APPLICANT

-and-

ADMARC…………………………………………………RESPONDENT

CORAM: 

HON. M.C.C.
MKANDAWIRE, CHAIRMAN

Applicant – Present

Respondent –
Present (Represented by Counsel Limbe)

Mr. George Kalulu –
Official Interpreter

J U D G M E N T

MATTERS IN ISSUE: Withholding
overtime dues for1502 hours valued at K30,416.02.

The Applicant has
brought this matter against the Respondent on a trade dispute of
withholding overtime dues. The Respondent in their
response to this
claim have denied the Applicant’s assertions.

EVIDENCE

The Applicant, a
truck driver by profession, was employed by the Respondent in the
year 1978. He served the Respondent at various
grades as a driver and
he even drove the Chief Executive of the Corporation. The Applicant
retired on 16^th of March 1998. He was however recalled to
work on a month-to-month basis. During the period he was taken on
month to month, he was
assigned to drive a truck with the
Respondent’s officials to perform tobacco and pigeon peas mobile
buying in outstations rural
markets. The exercise the Applicant
stated was too involving. They had to leave their homes at a very odd
hour may be 5.00 a.m. They
would knock off at very odd hours like
12.00 midnight. As a result of this special assignment, he had not
time to rest and he accumulated
1502 excess hours of overtime. The
Applicant told the Court that his bosses had authorized these hours
and signed for them. The hours
were even certified for payment. The
Applicant tendered in Court excess overtime sheets as evidence that
they were indeed certified
by his superiors. The Applicant told the
Court that at that time the Respondent had issued out a circular on
overtime. This circular
had put a flat rate for drivers, which
stipulated grades of truck drivers to be at K2,000 per month. Thus
even if one clocked hundreds
of hours, he would only be paid the flat
rate of K2,000 per month, which was equivalent to 86 hours.

The Applicant told
the Court that when the month-to-month contract was over, he
approached the Respondent’s Management so that he
should be paid
for the excess hours. He was at first referred to this and that
office. Finally, the Assistant General Manager minuted
that he be
paid. But when the documents were referred to accounts, they were
sent back because the accounts section saw no justification
for such
a payment in view of the standing circular on overtime. Finally,
Management only approved excess overtime hours for which
he had been
on duty in Mangochi. The Applicant said that he was not satisfied
with Management’s decision only to pay him for the
Mangochi trips
because mobile buying was a special exercise by the Respondent and
that he deserved to be paid. He further said that
he should have been
give off days for the excess hours if at all the Respondent knew that
they would not pay for these excess hours.
But since he had now
finally left work with them, there is no way he could be compensated
apart from them paying for these excess
overtime hours. The Applicant
said that even the Assistant General Manager who was responsible for
mobile buying spoke to Mrs. Mang’anda
that he should have been
given off duty for these excess hours but that it was too late. The
Applicant said that since the same office
paid him for the excess
hours in January and February 2000 when he was in Mangochi, he saw no
justification as to why they were declining
to pay for these other
excess hours.

The Respondent also
gave their evidence through Mr. Ausward M.K. Kibombwe the Assistant
Human Resources Manager. He stressed the point
that the Respondent
had a policy in place on overtime payment as stipulated in the
circular. The ceiling was K2,000. One could only
be paid for excess
overtime if the General Manager had authorized it. As for the claims
which the Applicant is making here, they
were not authorized and he
cannot be paid excess overtime allowance.

THE LAW

The matter herein
arose and involves periods before the Employment Act came into force
in the year 2000. I have thus based my legal
interpretation on the
Republic Constitution in particular Section 31 which provides:-

"Every person shall have
the right to fair and safe labour practices and to fair
remuneration."

The Term fair labour
practice has not been codified in any of our statutes on labour and
employment law. It is thus the duty of this
Court to give meaning to
these words so that the future generation has points of reference.

In analyzing the
evidence I shall therefore also be marrying it to this issue of fair
labour practice and fair remuneration.

ANALYSIS

The evidence on
record clearly shows that the Respondent had put in place a circular
on overtime. Any excess hours were not paid for
apart from the
maximum K2,000.00. Evidence from the Respondent has clearly revealed
that the discretion was upon the General Manager
or Assistant General
Manager to authorize if excess hours had to be paid for. In the
present case, administration did not although
they finally authorized
for only two months in the year 2000. The Applicant impressed the
Court as a man of truth. He worked at odd
hours on the mobile buying
scheme. He was on month-to-month and Management knew that very well.
The Applicant was not given any chance
by the Respondent to go on off
duty in order to utilize his excess overtime hours. This Court found
that it was a very unfair labour
practice on the part of the
Respondent to deny the Applicant the opportunity of payment for the
excess hours. If he was still in
the system, they should have sent
him on off duty in order to utilize the hours. But it is now too
late. Even the Assistant General
Manager queried the administration
as to why this man was not given the chance to go on off duty. The
Applicant was thus unfairly
treated by the Respondent. The Respondent
were involved in what one would now call unfair labour practice.

CONCLUSION

Having found that
denial for payment of excess overtime hours in the present
circumstances would amount to unfair labour practice,
I do order that
the Respondent should with immediate effect pay for the excess hours
that the Applicant is claiming for. The Registrar
of the Industrial
Relations Court to assess the exact amount.

DELIVERED this
----------- day of May 2002 at Limbe.

M.C.C. Mkandawire

HON. CHAIRMAN