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[2017] ZALCJHB 301
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Venter v Symington and De Kok (JS418/15) [2017] ZALCJHB 301; (2017) 38 ILJ 2828 (LC) (23 August 2017)
Reportable
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
IN JOHANNESBURG
C
ase No: JS 418/15
In
the matter between:
SUNEL
VENTER
Applicant
and
SYMINGTON & DE KOK
Respondent
Heard
:
25 – 26 August 2016
Delivered
:
23 August 2017
Summary:
(Claim for overtime pay arrears – employer failing to keep
record of time work – interpretation
of s 31, 33(1) and s 76 of
the BCEA – onus of proof of employee and employer –
magistrates’ court scale of costs
might be appropriate in
claims of this nature where quantum falls within jurisdiction of
magistrate’s court and that court
has jurisdiction by virtue of
s 77(4) of the BCEA)
JUDGMENT
LAGRANGE
J
Introduction
[1]
In essence, this case concerns a claim by the applicant for overtime
pay which she claims was due and owing to her by the respondent
for
the period 15 September 2012 until her resignation on 30 September
2014. The applicant claims the following overtime pay is
due to her:
1.1 R
73,380.84 for 2012;
1.2 R
96,241.14 for 2013, and
1.3 R
74,720.90 for 2014.
[2]
The trial was conducted in Afrikaans on the understanding that the
judgement would be handed down in English. The main factual
dispute
concerns the actual hours worked by the applicant and how those are
to be established based on the evidence. The applicant,
Ms S Venter
(‘Venter’), and Ms L Gouws (‘L Gouws’) gave
evidence in support of the applicant’s case,
and Mr P Joubert
(‘Joubert’), Ms K Mahaleroe (‘Mahaleroe’), Mr
M Fransisco (‘Francisco’) and
Ms H Gouws (‘H
Gouws’) gave evidence for the respondent.
Synopsis
of the evidence
[3]
I do not intend to relate the verbatim evidence of the witnesses but
merely to summarise the gist of their evidence in so far
as it is
relevant to the claim. One general comment which must be made at the
outset is the general paucity of circumstantial evidence
provided by
either party in the form of documents supporting overtime practices
and procedures as well as the record of hours worked.
Such evidence
of this kind which was tendered was of limited value and the evidence
of both parties was mainly oral testimony.
In a case in which a party
is claiming remuneration for a specific number of hours worked,
spanning a period of three years, the
evaluation of the vague oral
testimony which was given by both parties is frustratingly difficult
for the Court.
[4]
Venter was employed from 7 July 2008 in the debt collections
department of the respondent, a firm of attorneys. The business
of
the respondent appears to be essentially a large scale debt
collection operation with two major components: a legal collections
department (hard collections) and call centres (soft collections)
which together employ approximately 700 persons. In terms of
her
contract, Venter’s normal working hours were from 08H00 to 17
H00 from Mondays to Thursdays and from 08H00 to 16h 30
on Fridays.
[5]
According to Venter, she regularly worked overtime on Saturdays when
requested to do so and did not refuse because she believed
she would
be adversely affected if she did. Usually, she would work two or more
hours every second Saturday. In addition, she regularly
worked three
hours overtime every day during the week. Instructions to work
overtime work would usually be made orally and not
in writing by one
of the attorneys and or partners of the firm, a claim which which was
confirmed by L Gouws who had worked as
a collection assistant in the
firm. L Gouws also claimed to have regularly worked overtime during
the week usually by coming in
early to work but had seldom worked on
Saturdays herself.
[6]
Usually, the request for overtime work would be couched in terms of
an instruction to her to finish did you get the canvas certain
work
before she could leave, rather than been instructed to work as
specific number of hours overtime. Overtime work was usually
required
when certain client deadlines had to be met. Clients set certain
targets in the form of reports which had to be submitted
and she was
required to meet those. The requirement to meet these targets and the
pressure created to do so was corroborated by
L Gouws. She gave a
particular example of the staff in her department being told they
must issue 20 summonses a day but could only
manage 8 per day in
normal hours. Her supervisor said that they must make a plan even if
it required them to work overtime. Venter
said her workload was more
than most senior typists and could not be completed in a normal day
so it was impossible for her to
finish work without working overtime.
Some days she would work until 10 or 11 o’clock in the evening.
Under cross examination
she also claimed to have sometimes come in as
early as 06h00 or 06h30 to work overtime. Mohaleroe testified that if
deadlines had
to be met which required overtime to be worked then
that is something which would have to be arranged with the finance
department.
Personally she had never given Venter any instruction to
work overtime but she would not have done so anyway because Venter
did
not work directly under her supervision.
[7]
Joubert readily acknowledged that everyone had goals to achieve as
did the clients and that the associate members of the firm
monitored
whether goals were being achieved. However, according to him it was
the policy that overtime work had to be arranged
with supervisor.
This was to prevent staff taking advantage of overtime hours by
working at a slower pace during ordinary hours
and then being able to
earn overtime rates of pay to finish work. Mahaleroe also testified
that overtime was rarely worked and
every effort was made to try and
ensure that work was done during working hours to avoid overtime
work. If overtime had to be worked,
it would be a case of “all
hands on deck” to minimise the amount of overtime worked.
Generally, work of corporate clients
could be managed in ordinary
working hours. Overtime was always worked at the employer’s
request and not at the employee’s
initiative.
[8]
Venter’s workload began to increase in 2011 and 2012 owing to
increased demands of three clients namely, FNB, SLB and
SAB. When she
complained about the workload she was told she must ‘handle
it’. Most of her work instructions came from
Ms Slabbert,
Joubert and Francisco. When Joubert was asked whether an instruction
to work overtime would be given if the workload
increased he said
that as far as he was aware, it had not occurred but such an
instruction could have been given by the associates
supervising her.
Both Joubert and Francisco testified that at some stage Venter had
complained about her workload and a certain
client’s book had
been removed from her work responsibilities. This evidence was never
canvassed with Venter.
[9]
Apart from the general salary increases she received, Venter did not
dispute that her salary had also been increased significantly
when
her workload had grown because of the new reporting requirements of
SAB. In March 2012, her monthly salary was increased by
R 3,220-00,
amounting to an increase of nearly 50%. Venter did not dispute that
this increase had been given to her in recognition
of the increased
workload she had been given and because she had made representations
to Slabbert, though she could not specifically
recall this and
claimed not to know the reason why she would have received such a
large increase. When Joubert testified, he attributed
the higher
salary to the more responsible work that Venter was doing in handling
national clients rather than local Bloemfontein
clients. He did not
attribute it to her having to work longer hours, which would have
included overtime, to deal with the workload.
The following year, her
salary increased by approximately 24%, which the respondent claimed
was also in recognition of her increased
workload, which Venter did
not deny. It was put to Venter that the only reason she might have
worked beyond her normal working
hours was because she could not
cope, not because she was asked to work overtime and that,
accordingly, she worked voluntarily
in excess of her normal hours and
without the employer’s consent. However, she insisted that she
was regularly told to finish
her work, by which I understood her to
be saying that the instruction to finish her work necessarily implied
she would have to
work overtime. L Gouws claims to have heard Venter
being instructed on occasion to finish work and that she was
sometimes in the
office early and still there when she left. However,
Joubert claimed that in the last few months, he seldom saw Venter
after hours.
He freely acknowledged though that she worked in a
different section of the office from him and he would not have seen
her.
[10]
Francisco said that it could happen that staff could work additional
hours without asking permission to do so and it was possible
that if
someone worked until 17H30 he might not realise it. He generally
worked until 18H30 or 19H00. Although it was not raised
in
cross-examination of Venter, Francisco said he regularly worked on a
Saturday but could not remember seeing Venter there. H
Gouws had
worked at different ends of the building from Venter during the last
four years but had to go past Venter’s workplace
to reach her
own. On many days, she would not see Venter, but on many other days
Venter was still there when she left. However
although she went in on
many Saturdays she never saw Venter on those occasions. H Gouws
claimed that when she worked on Saturdays,
she was getting up-to-date
and never claimed for the hours she worked because it was not
important to do it.
[11]
Venter never received payment for the overtime hours she worked. She
claimed that she calculated the overtime hours she had
worked by
using the times that she accessed and exited her computer using her
personal code and password. There was a clocking
system at the door
but this was not always reliable and was not used to calculate her
claim. She agreed that the security access
record was not used as a
clocking record for salary purposes. However, it did provide some
evidence of her hours of attendance
at work. Thus, on Saturday 13
October 2012 it showed that she came to the office just after 10H00
and left just over two hours
later. Under cross examination, it was
put to her that if overtime was worked then a record of it being
authorised would have been
kept by the firm on an email from
Mohaleroe or her supervisors Miguel and Slabbert, and that was the
only method by which it was
supposed to be recorded. Venter said she
could not dispute that. On the other hand, Joubert conceded that the
clocking record might
show that Venter had worked on Saturdays on 20
and 27 October 2013 but if she had done so, that had been her own
choice to work
in order to get up to date and provided she had
arranged it with her associate supervisor there would be nothing
untoward about
that.
[12]
Venter also conceded that even if the security access record was not
a record of time actually worked that it did not give
a general
impression of working three hours overtime a day on average.
[13]
She claimed that when she queried the lack of overtime pay with one
of the partners, Joubert, he told her that there was no
chance of
getting overtime pay as they did not pay for overtime work. She
claimed that she had raised it with Ms S Slabbert, one
of the
attorneys she worked for, but was told that the chances of her
getting it were not good. She got the feeling she could lose
her job
if she pursued the issue of overtime pay and she needed the work.
However, she could not identify one of the many staff
working for the
respondent who had been dismissed on account of a dispute over
overtime pay or refusing to sign a written contract.
Joubert denied
ever giving Venter any reason to believe that she would be prejudiced
if she did not sign her contract. L Gouws
testified that she had
refused to work overtime and on that occasion, it had been insinuated
that she was placing her job in jeopardy.
Despite this, in later
years she increasingly refused to work overtime because she felt the
pay was insufficient. Venter testified
that she did not keep a record
of her overtime hours but believed it was not necessary because the
IT department could provide
the information, but when she asked
Mohaleroe for such information for the first time in September 2015,
she told her it was not
possible to do so.
[14]
In her original general terms and conditions of employment which
applied to her when she accepted appointment as a collections
typist
in 2008, the provision relating to hours of work provided for working
hours from 08H00 until 17H00 from Monday to Friday
excluding a daily
lunch break of one hour. The overtime provision simply stated that
overtime would be worked by agreement when
requested by the employer.
Subsequently, in February 2014, Venter was issued with another
contract, which contained far more detailed
provisions pertaining to
hours of work, as follows:
“
7. HOURS OF WORK
7.1
Ordinary hours of work for employees of the employer will be
42
(forty two) per week.
7.2
A 5 (five) day week will be worked.
7.3
the maximum working hours per day will be no more than 8½
(eight and a half) hours, lunch break included.
8. NORMAL WORKING HOURS
Normal working hours Monday to
Thursday shall be from 08:00 to 13:00 and 14:00 to 17:00 and on
Friday from 08:00 to 13:00 and 13:30
to 16:30.
9. TEA/SMOKE AND LUNCH BREAK
9.1
The employee shall be granted a tea/smoke break of 10 (ten)
minutes
in the morning and 10 (ten) minutes in the afternoon.
9.2
The employee shall be granted a lunch break of 60 (sixty) minutes
in
the afternoon as scheduled by the employer on Monday to Thursday
between 13:00 and 14:00 and Friday between 13:00 and 13:30.
10. OVERTIME
10.1
The employee agrees to work overtime when required and deemed
necessary
by the employer. Overtime should not be seen as a right,
but during exceptional circumstances it may be required.
At least 24 (twenty four) hours’
notice will be given to the employee requesting him/her to work
overtime. This period of
notice can only be shortened in the case of
unforeseen or exceptional circumstances e.g. power failures,
technical breakdowns,
etc.
10.2
Overtime will not exceed 10 (ten) hours per week.
10.3
Overtime will not exceed 3 (three) hours per day.
10.4
if it is required that the employee works overtime, the employee will
be paid at a rate of 1½ (one and a half) times his/her hourly
rate.”
The
contract says nothing specifically about Saturday work but clause 11
specifically stated that an employee would not be required
to work on
a Sunday. Clause 12 also provided that ‘under exceptional
circumstances’ an employee may be required to
work on a public
holiday. Mohaleroe testified that there was a procedure in terms of
which employees would be asked if they could
work overtime and then
she would notify the HR department which would send an email
confirming the agreement and she would have
authorised the working of
overtime. Mohaleroe stated that she would personally have to be
present when overtime was worked so she
could lock up afterwards.
This contention was not put to Venter under cross-examination.
[15]
It was suggested to Venter that she could not have worked late
because she did not have an access code and that one of the
supervisors could have armed the alarm at the premises when everyone
left. However, Francisco seem to recall her working late with
him to
finish certain tracking reports, but that it was not his job to
report any overtime she had worked to Mohaleroe. According
to thim he
would send requests to staff to work overtime to HR and he would
confirm the arrangement. He claimed that staff would
confirm the
number of overtime hours worked with him and he was not sure if HR
checked this against clocking system records. H
Gouws gave similar
evidence about the arrangements that would be made if the staff were
asked to work overtime. She had not been
asked to work overtime
regularly, but did say that it depended on the degree of pressure
there was to finish work. On the three
or four occasions she had
worked overtime she had been paid for it.
[16]
Venter agreed that the overtime regime she claimed to have worked was
in conflict with provisions of the revised contract like
clauses 10.1
and 10.3. She claimed she discussed the discrepancies between the
contract and her actual working conditions with
Mohaleroe but could
not remember what Mohaleroe had said except that it was a standard
contract which she had to sign. She could
not recall Mohaleroe saying
that no overtime should be worked unless it was requested or that she
should take up any problems she
had with the contract with Joubert.
Once again, she feared losing her job if she did not sign it.
However, she did not dispute
that her relationship with Joubert and
Slabbert was reasonable and that Slabbert would listen to her
complaints about her hours,
but she would not go as far as conceding
that Joubert was approachable and understanding. In this regard it
was put to her that
she was granted additional leave by Joubert, but
she could not recall this on account of not having the leave slips.
However, she
did agree that she was given considerable study leave.
[17]
Venter’s estimation of the overtime hours she claimed to have
worked left a great deal to be desired. It was put to her
cross-examination that the data of the C3 call centre software which
she used in the course of her work would not give a complete
picture
of her working hours. Joubert claimed that the C3 data was not kept
for longer than three months in any event and was essentially
just a
system for managing different clients’ debtor’s books.
She was reluctant to concede that the times reflected
in the access
and exit security system was a reasonable reflection of her working
hours and that the odd occasion when it showed
that she had only been
on the premises a minute was simply when the swipe card took too long
to register on the system.
[18]
As to the calculation of the sums claimed for alleged overtime pay in
arrears, Venter was vague about the method used to estimate
the
amounts she had claimed, which she said had been calculated by her
attorney. She maintained that the calculation must have
been based on
her instructions to her attorney that the entire collections
department worked four hours on a Saturday at least
once a month, and
on other Saturdays a couple of hours assisting the call centre staff
in addition to two to three hours overtime
worked on weekdays.
Mohaleroe claimed she would never have given such an instruction and
would have to have been present when such
work was done and she had
two children so she would not have been able to do this. As
mentioned, this detail was not something
put to Venter during her
cross-examination. Francisco, who was Venter’s direct
supervisor for the last seven months she worked
for the respondent
could not recall any Saturdays when she had been asked to work four
hours or any other Saturdays when call centre
backlogs were
addressed. He did not deny that it could happen that backlog work had
to be done but it would not be unpaid overtime
work. H Gouws, who had
worked for 17 years for the respondent in the collections department
and had worked the last four years
under Mohaleroe said that nobody
in the last four years in her section had worked overtime on Mondays
to Fridays nor had anyone
been asked to work two Saturdays in a
month. She also disclaimed any knowledge of staff working four hours
on Saturdays at month-end.
[19]
Joubert testified that doing collection work on a Saturday was
pointless because debtors were not at home. However, this was
never
put to Venter under cross-examination. If call centre targets could
not be met, the firm sometimes asked typists to phone
debtors during
working hours but never after hours. Joubert could not understand how
Venter could have worked the hours she said
she did and never put in
a claim for overtime pay.
Evaluation
Keeping
records of hours worked and proof of wage claims
[20]
S 33 of the Basic Conditions of Employment Act dealing with
information about remuneration provides
inter alia
that:
33 (1) An employer must give an
employee the following information in writing on each day the
employee is paid:
…
(c) the period for which
the payment is made;
(d) the employee's
remuneration in money;
…
(f) the actual amount paid
to the employee; and
(g)
if relevant to the
calculation of that employee's remuneration
-
(i) the employee's
rate
of remuneration and overtime rate
;
(ii)
the number of
ordinary and overtime hours
worked by the employee during the
period for which the payment is made; …”
(emphasis
added)
S
31 of the BCEA further makes provision for an employer to maintain
certain records for a period of three years from the last date
of
entry in that record, viz:
“
31 Keeping of records
(1) Every employer must keep a record
containing at least the following information:
(a) The employee's name
and occupation;
(b)
the time worked
by each employee;
(c)
the remuneration
paid
to each employee;
(d) the date of birth of
any employee under 18 years of age; and
(e) any other prescribed
information.
(2) A record in terms of subsection
(1) must be kept by the employer for a period of three years from the
date of the last entry
in the record.
(3) No person may make a false entry
in a record maintained in terms of subsection (1).
(4) An employer who keeps a record in
terms of this section is not required to keep any other record of
time worked and remuneration
paid as required by any other employment
law.”
(emphasis
added)
Lastly
under s 76 of the BCEA, in any proceedings about a contravention of
the Act, the employer must prove the accuracy and validity
of any
record it maintains and, if it has failed to keep such a record
relevant to the proceedings, it must prove it has complied
with the
Act, viz
“
76 Proof of compliance
(1) In any proceedings concerning a
contravention of this Act or any sectoral determination it is for an
employer-
(a) to prove that a record
maintained by or for that employer is valid and accurate;
(b)
who has failed to
keep any record required by this Act that is relevant to those
proceedings, to prove compliance with any provision
of this Act
.”
(emphasis
added)
[21]
It follows from the above that the respondent was obliged to keep
records of Venter’s remuneration and the time she worked
for a
period of at least three years after her last working day. It did not
keep records of the time she worked, contrary to its
obligations
under the BCEA. The only record it claims it would have kept of any
overtime she worked would have been email authorisations
for the
overtime worked. The record of hours worked by Venter was most
material and relevant evidence in these proceedings.
[22]
Consequently, the respondent’s failure to keep a record of
Venter’s hours worked means that it failed to keep a
record
relevant to these proceedings and therefore insofar as it claims it
is not liable for overtime pay it must prove it acted
in compliance
with the provisions of the BCEA relating to overtime pay. In its
answering statement the respondent disputed that
it was indebted to
the Applicant for “any overtime whatsoever and consequently
denies that it contravened the provisions
of the BCEA”. If
overtime was worked it is therefore for the respondent to prove that
it is not liable to the applicant,
but this still presupposes that it
is first established that overtime was worked and the onus of
establishing that rests on the
employee.
[23]
The difficulty for the applicant is that even if she cannot be
responsible for not having a comprehensive record of the hours
she
worked, which was the respondent’s responsibility, she must at
least establish on a balance of probabilities that overtime
was in
fact worked and when it was worked. I appreciate that this onus is
more difficult to discharge in the absence of the record
of hours the
employer is required to maintain, but as long as employees can
establish on a balance of probability that they did
work overtime on
certain occasions, that should be enough to shift the burden of
proving compliance with the BCEA overtime regime
to the employer, if
the employer kept no records of working time.
[24]
The first issue raised by the respondent is that if Venter worked
beyond her normal hours on one or more occasion, she still
needed to
prove that this was done with its consent, because overtime had to be
arranged by agreement. Venter never claimed that
she was expressly
requested to work overtime in so many words. The form in which need
to work overtime was expressed to her was
by way of an instruction
that she was to finish certain work before she could go home. Since
that could not be done by the time
ordinary working hours ended, in
effect it was an instruction to work overtime until the job was
completed. It does stand to reason
that if such an instruction was
given, it contains an implicit acknowledgment that the employee would
be working beyond normal
working hours, because there would be no
need to say the employee could not leave before the work was done
unless it was anticipated
the employee may have to work beyond the
time they would normally be entitled to leave. On account of my
conclusion that in effect
the respondent did implicitly instruct to
Venter performing overtime and this constituted a request or
instruction to do so, it
is not necessary to enter the debate about
whether she ought to have been compensated for hours worked in excess
of her ordinary
hours without the employer’s consent.
[25]
S 10(1)(a) of the BCEA stipulates
inter alia
that an employer
may not require or permit an employee to work overtime “except
in accordance with an agreement”. The
provision relating to
overtime in the conditions of employment which applied to the
applicant from 2008 until she signed her second
contract of
employment in 2014 was brief. It merely stated summarily:
“
1.2 Oortyd by ooreenkoms soos
en wanneer deur die Werkgewer versoek”
Apart
from echoing s 10(1)(a) in making it clear overtime work had to be by
mutual agreement it would be initiated at the respondent’s
request. The provisions of the 2014 contract cited previously were
more elaborate. Firstly, they made it clear that the employee
agreed
in advance to work overtime at the instance of the employer (‘when
required and deemed necessary by the employer’)
and on twenty
four notice to the employee, which could be shorter in “unforeseen
or exceptional circumstances”. However,
nothing in the contract
required the instruction to be made in writing, nor did it stipulate
procedures for authorising overtime
work, such as those testified to
by the respondent’s witnesses. Thus, on a plain reading of the
contracts, nothing prevented
a request or instruction to work
overtime being conveyed orally to Venter and there was no prescribed
manner in which she had to
express her assent, to the extent she
might have been lawfully entitled to refuse the request.
[26]
As a result, I am not persuaded that the applicant could have refused
to work overtime in terms of either of her contracts
merely because
the various confirmatory emails between her supervisor and the HR
department had not been sent. Those arrangements
were not
something she could oblige the respondent to comply with as a
precondition to her working overtime. Provided she got an
oral
instruction from her superior to work overtime, that would have been
sufficient to constitute a request or instruction, depending
on the
applicable contract. If she waived the requirement that she was
entitled to be given 24 hours’ notice, the respondent
could
hardly rely on her waiver of a provision which was plainly inserted
to protect her interests to argue that a request to work
overtime on
short notice relieved it of the obligation to pay for the overtime
hours she actually worked pursuant to that request.
[27]
The next question is whether such a request was made or instruction
given. The applicant contends this was implicit when she
was told not
to leave until she finished work. For the reasons mentioned above, I
agree that such an instruction would be sufficient
to constitute a
request to work overtime until a task was completed. It is apparent
that there were regular client deadlines that
had to be met and that
might well have necessitated working after hours on occasions. The
difficulty is with establishing how often
that is likely to have
happened. In this regard the applicant’s evidence mainly
consisted of sweeping generalisations about
the frequency and extent
of overtime she worked. Her version of her Saturday work also
changed in the course of her own testimony.
Initially she claimed she
worked two weekends per month for two or three hours, and later said
that the Saturday arrangement became
a fixed arrangement in terms of
which the whole department had to work not less than four hours from
08H00 to 12H00 and on the
alternate Saturday for at least two to two
and a half hours. To the extent that she could corroborate her claims
L Gouws could
only confirm that overtime work was the norm, but could
not confirm the general practices in Venter’s department as she
did
not work there. H Gouws and Fransisco did acknowledge that Venter
was sometimes seen at work after hours, but there was little oral
evidence to corroborate Venter’s claims about Saturday work.
The only circumstantial evidence of her attendance at work are
the
security access records for the period 3 September 2012 until 16
September 2014. That was the only evidence which could provide
more
specific corroboration of the occasions Venter was at work after
hours. That record itself is very problematic as it appeared
to be
incomplete in a number of respects.
[28]
For example, the record for the ten day period from 3 September up to
and including 13 September 2012 only indicates Venter
having been on
the premises for any substantial period of time on 11, 13 and 14
September (all weekdays). Further, if that record
was used as an
indicator of hours worked would suggest she only worked a total of
barely 17 hours all of which took place on weekdays.
Taking the two
years of clocking records as a whole and taking into account all
weekdays on which Venter appears to have been at
work for more than a
9 hour interval and then allowing for only a quarter of an hour
between the time she passed through security
and started working, in
the entire period from 3 September 2012 until 16 September 2014, she
would appear to have worked 127.75
hours overtime over 92 weekdays
and only 10.88 hours on three Saturdays. It does seem that some of
the periods of longer hours
do seem to appear towards the end of
months but the pattern is not predictably regular. What the
circumstantial evidence
suggests is that she probably did work
overtime on a reasonably regular basis. However the degree of
regularity of overtime work
was nothing like the daily, weekly and
monthly regularity she claimed to have worked and Saturday work was a
rare event. There
was really no evidence apart from her own to
support Venter’s claim of regular fortnightly Saturday work.
Even allowing for
the limitations of the access records, it would be
tendentious to assume that because of those inadequacies, the fact
that Venter
was shown to have been on the premises on 3 Saturdays is
sufficient to corroborate her claim of regular fortnightly Saturday
overtime
work.
[29]
Likewise, on those weekdays when she did appear to have been on the
premises longer than 9 hours and 15 minutes, the average
additional
time spent at work was just over 1 hour and 23 minutes which is a far
cry from the three hours overtime she claimed
to have routinely
worked. If one has regard to the months of September, October
November 2012, January, March, April, May, June,
July, August,
September, October and November 2013 and January, March, April, May,
July and August 2014 the average number of days
on which Venter was
recorded at work is 18.57 per month, whereas the normal average
working days per month should be 21.65 (4.33
weeks x 5 days). Months
where the dates on the access record indicated date gaps of entire
week or more, therefore suggesting the
applicant may have been absent
from work, or months like December were excluded because annual
shutdowns seems to have affected
the working days. Taking the above
into account it is reasonable to infer that the attendance records
probably failed to record
attendance on about 14 per cent of days
worked. In addition approximately 44 % of the access records can
assumed to be inaccurate
records of her work attendance because they
record attendance at work of 3 minutes or less. Accordingly a further
adjustment should
be made for the lack of a proper attendance record
on those days. For these two reason, to the extent they may serve to
corroborate
the applicant’s vague oral testimony they may
understate the number of days she worked overtime to the same extent.
[30]
Even making allowance for this, it is difficult to reconcile with the
applicant’s claims. While the access records may
not have been
an accurate record of actual hours worked, there was no reason
advanced why they would not have reflected the maximum
time Venter
could have worked on the days when her access was properly recorded.
As such they provide valuable circumstantial evidence,
and I see no
reason why they should not be accepted as a more reliable indicator
of the probable overtime hours worked on any particular
day by the
applicant than her own oral testimony. Accordingly, I have concluded
on a balance of probabilities, taking into account
the 14 % of days
which appear completely unaccounted for on the attendance record and
the fact that on about 44 % of the days when
she did work the access
record cannot be used as a measure of time at the premises, the 92
days where she was recorded as being
at work beyond 9 hours and 15
minutes needs to be adjusted to compensate for that gap. On that
basis it would be reasonable to
infer that on about 145 days Venter
probably worked just over 1 hour and 23 minutes overtime during the
two year period under consideration.
[31]
Taking into account the fact that Venter’s salary was R 9,720,
R 12,000 and R 12,950 for the periods beginning 1 March
2012, 1 March
2013 and 1 March 2014 respectively and, her overtime hours and
remuneration due for the relevant periods, before
any adjustment is
made for the access record deficiencies are set out in the table
below. For the purposes of adjusting for the
shortcomings of the
access record by extrapolating the results of 42 % of the available
access record, it is assumed those deficiencies
were evenly
distributed over each period.
Period
Overtime hours per access record
Hourly rate of pay
Amount due before adjustment
Adjustment amount
Amount due after adjustment
3 September 2012 to 28 February
2013
59.67
R 53.45
R 3189.22
R 4401.13
R 7590.35
1 March 2013 to 28 February 2014
59.21
R 65.98
R 3906.96
R 5391.61
R 9298.57
1 March to 26 August 2014
8.12
R 71.26
R 632.11
R 872.31
R 1504.42
Totals
127.75
R 18393.34
[32]
To the above amount must be added the R 581.51 for the 10.88 hours
overtime worked on a Saturday in the first period. I have
not
extrapolated this isolated record of Saturday work because there is
simply no convincing evidence that overtime work was done
on
Saturdays except on an exceptional basis.
[33]
In the applicant’s
written heads of argument her counsel referred to, without
specifically citing the judgment, the emphasised
portion in the
extract below from the judgment of the LAC in New Way Motor &
Diesel Engineering (Pty) Ltd v Marsland
[1]
,
in which there was no dispute, the respondent employee had worked
overtime but the only evidence tendered about the amount of
overtime
worked was his own. The LAC stated,
“
[32]
In the light of the
often contradictory and certainly unsatisfactory evidence of
respondent, but absent any other evidence, the
court is required to
undertake its own calculation which, in the circumstances, is fair to
respondent
who clearly, on the uncontested evidence, worked
overtime but, which claim in the absence of any other G evidence,
must fall within
the parameters of the contract. To ignore that
respondent worked this uncontested amount of overtime and thus not
order the requisite
compensation, on the facts, would be grossly
unfair to respondent. Accordingly, employing the provisions of clause
12 of the contract
which provides for permissible overtime, H the
following calculation is adopted to make the necessary award:
1
In the week 5-10 May 2001, the respondent, on his version, worked 37
hours' overtime.
He was contractually limited to 10 hours. 27 hours
must be deducted. ....”
The court went on in similar vein to
calculate the remaining overtime hours due to the respondent. While
the court made it clear
it will estimate what is fair in the absence
of other evidence and where the evidence before the court is of poor
quality, that
does not mean that a claimant is not required to make
an effort in assisting the court in the form of submissions in
argument as
to how that estimate should be arrived at. In this
instance, the court had to sift through the raw undigested evidence
of the access
records to arrive at an estimate which is fair to the
applicant in the absence of being able to arrive at an estimate from
the
vague and general evidence of the applicant. Perhaps, the
applicant realised that any close analysis of that record would not
yield
the result she hoped for, but the failure to make any
meaningful attempt to deal with the quantification of the claim when
submitting
heads of argument is deplorable and could easily have
attracted an order disentitling the applicant’s attorney to a
fee for
the heads of argument. The
Marsland
judgment is not
authority for legal representatives adopting an insouciant attitude
towards their own responsibility to estimate
a claim in cases where
the evidence is something of a proverbial ‘dog’s
breakfast’.
Costs
[34]
The applicant has at least been successful in proving the essence of
her claim that she did perform overtime work which was
unpaid, though
the quantum of arrear overtime pay due falls far short of the amounts
she estimated. The respondent also failed
to comply with
fundamental record keeping requirements of the BCEA. If it had kept
proper records, this litigation would probably
never have arisen,
since any entitlements to overtime pay would have been simple to
calculate. In my view, given that the firm
is a large employer and a
firm of attorneys, that alone would have disentitled the respondent
to any entitlement to costs even
if it had been successful.
[35]
However, a word of caution must
be sounded about routinely launching claims of this nature which
could just have easily have been
brought in the Magistrate Court.
If the quantum of the claim is one that clearly also falls within the
jurisdiction of the
Magistrate Court and if there is no other reason
why the claim could not have been brought as an ordinary civil claim
as provided
for in under s 77(4), which creates an exception to the
principle that the Labour Court has exclusive jurisdiction in respect
of
all matters arising under the BCEA
[2]
,
then a claimant should not automatically expect that costs will be
awarded on the High Court scale.
[36]
I mention this because, if the respondent had argued that this claim
could have been brought in the Magistrate’s Court,
and had
warned the applicant that in the event she was successful it should
not be held liable for costs on the High Court scale,
it might
justifiably have argued that she should not be entitled to her costs
on the High Court scale. However, in this instance
this was not
raised by the respondent.
Order
[1]
The respondent is liable to the applicant for overtime pay for the
period 3 September 2012
to 26 August 2014 in the amount of R
18,974.85, comprising R 18,393.34 for overtime worked on weekdays and
R 581.51 for overtime
worked on Saturdays respectively and must pay
the applicant the said amount within 15 days of the date of this
judgment.
[2]
The respondent must pay the applicant’s costs.
[3]
The Registrar is directed to send a copy of this judgment to the Head
of the Labour Inspectorate
of the Free State Provincial Department of
Labour drawing his or her attention to the respondent’s
apparent non-compliance
with provisions of the Basic Conditions of
Employment Act relating to maintaining records of employees’
working time.
_______________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
J
Keet of Keet Attorneys
RESPONDENT:
M
C Louw instructed by Symington & de Kok
[1]
(2009) 30
ILJ
2875
(LAC) at 2884
[2]
S 77(4) states:
“
Subsection (1) does not
prevent any person relying upon a provision of this Act to establish
that a basic condition of employment
constitutes a term of a
contract of employment in any proceedings in a civil court or an
arbitration held in terms of an agreement.”