IN THE INDUSTRIAL
RELATIONS COURT OF MALAWI

PRINCIPAL REGISTRY

MATTER NO. IRC 13
OF 2002

BETWEEN:

MR MANUEL SOKO
…………………………………….. APPLICANT

-and-

CHIBUKU PRODUCTS LTD
…………………………. RESPONDENT

CORAM: 

R. ZIBELU BANDA
(Ms.) DEPUTY CHAIRPERSON

Manuel Soko,
Applicant

Olex Dzimba for
Respondent (Personnel Officer)

Ngalauka Court Clerk

J U D G E M E N
T

Withholding wages for overtime work;
normal working hours form part of contract of employment.

FACTS

The
applicant commenced this action on 9^th
January, 2002 claiming One Hundred Fifty-Five Thousand Two Hundred,
Ninety Eight Kwacha and thirty tambala (K155, 298.30) comprising
money earned in excess hours worked for the respondents during a
period from November 1998 to December 1999.  He informed court
that he commenced employment with the respondents on 2^nd
February 1995 as Sales
Representative. His
services were terminated on 29^th
February 2000. At the time of termination of services he had risen
through the ranks to position of Distribution Manager, earning
a
basic salary of K6, 593.00 from K1, 240 when he was first employed.
 

Terms and
conditions of contract of employment between applicant and the
respondent were expressed in a document tendered by the applicant
as
exhibit “AP1” entitled:   “JUNIOR STAFF CONTRACT.”
However, the respondents denied that this document formed the
contract. They contended that the applicant had risen through the
ranks
to managerial position as per exhibit “RP5” being a letter
of promotion from the respondents to the applicant entitled:
“PROMOTION: DISTRIBUTION MANAGER.”                   

The
applicant submitted that the promotion did not come with express
terms and conditions for that job other than a revised salary
to
K5733.00 per month. He therefore, felt that he was guided by “AP1”.
In that document the applicant singled out the section
on “SALARY:
normal hours of work”. It is on the basis of this section that
he claims overtime.

ASSESSMENT
OF FACTS

The first
observation is that “AP1” was a contract of employment for a
Sales Representative. At the time of termination of services
the
applicant was not a Sales Representative but a Distribution Manager.
Therefore he could not have been governed by “AP1”.

The second
observation is that the applicant on his own admission never claimed
overtime since becoming Distribution Supervisor in
Bantered in
November 1998. He informed court that his immediate boss a Mr. Mvula
had advised him that he could not claim overtime
because he was not
entitled. There was nothing to show that the applicant was
dissatisfied with that advice. He continued work and
never claimed
any overtime until the termination of his services in February 2000.
The applicant could not produce in court any form
or official
document from the company indicating or verifying his claims for
either ordinary overtime, day off overtime or holiday
overtime. He
tried to show that he had this information in a personal diary,
which, was missing, the court found this assertion rather
far
fetched.

In
countering the applicant’s assertions on overtime entitlement, the
respondents produced two memorandums under subject: “MAXIMUM
SALARY FOR OVERTIME,” dated 10^th September, 1998,
marked as exhibit “RP1” and another headed: “MAXIMUM SALARY
FOR CLAIMIMG OVERTIME,” dated 29^th December, 1999
exhibited as “RP2”.

In the first
memorandum the maximum salary for claiming overtime was K3231.25.
The respondents explained that all employees were advised through
Operation Managers that those who got a basic salary of K3231.25
and
above were not entitled to overtime allowance. During this period the
applicant’s salary stood at K4, 009.00 as per exhibit “RP3’.
This exhibit was a salary increment advice from the Personnel Manager
to the applicant, dated 1^st October 1998. It should be
remembered that the applicant’s claim for overtime is for period
from November 1998 to December 1999.
During this period as can be
seen from “RP1” and “RP3”  (there was no evidence to the
contrary) the applicant fell outside
the overtime entitlement
category.

In the
second memorandum the maximum salary for one to claim over time was
K5, 545.00 per month effective 1^st January 2000. It
was produced and exhibited in this court “RP5”, a document,
showing that prior to this memorandum the applicant
was holding the
position of Distribution Manager and earning a salary of K5733.00
per month.

This court
did not believe the applicant’s allegation that he never got or saw
“RP1” and “RP2”. If the applicant believed
that he was
entitled to overtime he would have claimed it using the normal
channels that everybody else used at the company. It is
because he
knew that he was not entitled that he never took any steps to claim
overtime allowance when he was so employed.

THE LAW

The
Employment Act 2000 states in section 36(1) that:

“An
employee’s normal working hours shall be set out in the employment
contract.” 

It is
therefore the duty of parties to a contract of employment to set out
clearly the express terms of a contract of employment including
normal working hours. It was submitted that the only time, terms and
conditions of service of the applicant were mentioned in documentary
form was when he was Sales Representative. This prompted the
applicant to think that he could select the terms and conditions that
were to his advantage from this contract and use them against the
respondents.  However, the legal position is that the employer
is not under duty to set out each and every term of contract of
employment in a document. The legal obligation is limited to issuing
a written statement containing particulars of the main terms and
conditions of employment. Employees do not have to sign this
document.
(See section 27(1) of the Employment Act 2000.)

The fact
that there was written regulation on overtime formed an express term
of contract regarding overtime pay. It was not necessary
for the
respondents to draw up a formal contract of employment with the
applicant to express that particular term. It was enough
that there
were written statements in the form of memorandums from now and again
advising employees on changes in overtime entitlements.
It was up to
the applicant to negotiate with management if he felt aggrieved with
the condition regulating overtime.

It is said
in the Law of Employment: Practice and Analysis (1998) that:

“Hours
of work will be in accordance with the contract of employment.
Usually this will provide for some normal or standard number
of hours
per week, beyond which hours constitute overtime. The rate at which
overtime is paid, is, like ordinary pay, not governed
by legislation.
Rather it is a matter of contract. The test of whether overtime is
contractual is whether the employer must provide
it and the employee
must work it.”

This view
echoes the spirit of our law in section 36 of the Employment Act 2000
quoted above.

Evidence of
whether the respondent provided overtime to the applicant would have
been in the form of authorization. The respondent
submitted in court
the procedure for overtime at the respondent’s company.
Authorization was crucial before one could claim overtime.
Head of
Department or Supervisor would issue authorization where necessary.
The authorization had to be documented, for purposes
of calculating
off time hours or pay in lieu thereof. The applicant had at one time
during his term of employment with the respondents
been entitled to
overtime and he followed a procedure as laid down by the respondents.
This court cannot entertain his assertion,
therefore, that he was in
the dark.

FINDING

The
conclusion of the court is that the applicant was aware of the
position on overtime at his work place. The employer did all it
could
to inform employees including the applicant the position on overtime
allowance as amended from time to time. This was enough
notice to
all. The burden was on the applicant to question that position when
he had the time during his term of service. The court
finds that the
applicant was not entitled to overtime and hence his claim for K155,
298.30 must fail in its entirety.

Pronounced
in open court this 1^st
day of October 2002 at LIMBE.

 R. Zibelu Banda
(Ms.)

DEPUTY
CHAIRPERSON