IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
Case No. D1361/01
In the matter between:
SHARON HIGGS Applicant
and
NATAL WHOLESALE JEWELLERS (PTY) LTD Respondent
JUDGMENT
1. This is a matter concerning a disputed claim for overtime pay. The Labour
Court has jurisdiction by virtue of the operation of Section 77(3) of the Basic
Conditions of Employment Act ("the BCEA").
2. The Applicant was employed by the Respondent from the 2 nd of March 1999
until May 2001, when she resigned. She was so employed in terms of a
written contract of employment entered into between the parties on that date.
3. It is common cause that the Applicant's salary was high enough to exclude
her from the normal operation of the clauses in the BCEA or any other
applicable wage determination, requiring an employer to remunerate
employees for overtime by operation of statute.
4. A defence that the Applicant could not claim overtime because her pay
exceeded the minimum pay applicable in order for the BCEA to be applicable
was pleaded as a point " in limine ", repeated in paragraph 4 (i) of the pretrial
minute as an issue for this Court to decide and again repeated at length in the
written closing argument submitted on behalf of the Respondent (see
paragraphs 9, 10 and paragraphs 79 following).
5. This defence has no merit because the Applicant's written contract of
employment was common cause in these proceedings. The relevant clause
reads as follows :
"You may be required to work overtime at Management's
discretion, especially during the peak periods of business for
example Easter, Christmas, stocktaking etc. Overtime will be
compensated for at the rates dictated by current legislation ".
6. Clearly then, the Respondent agreed to pay to the Applicant overtime at the
prevailing rates in the current legislation when that overtime was worked in
terms of the agreement. The provisions of the legislation are therefore
relevant only insofar as they are a reference point for the rate of payment
applicable to a claim established in terms of the contract of employment. The
fact that the Applicant's rate of pay took her outside of the overtime provisions
in either the BCEA, or the applicable wage determination, is an irrelevant
factor in the determination as to whether or not she has a claim.
7. What is relevant is whether or not the Applicant has established a claim in
terms of her contract of employment. In this regard there is, in my opinion, a
distinction between overtime worked at the election of an employee and
overtime worked at the election of an employer. If, for example, a
professional assistant in a law firm decides to work late into the night, entirely
of his own volition, in preparation for a court case the next day, he can hardly
present a bill for overtime work to his employer (I am assuming the existence
of contractual arrangements similar to the one in this case).
8. In order to succeed, the Applicant therefore had to demonstrate clear
authority from her employer to work overtime in respect of clear requirements
from her employer to do so. For the reasons which follow I do not believe that
the Applicant has established the requisite authority:
8.1. The Applicant testified in support of her claim. In support of the
Respondent's defence, two witnesses were called namely Mr David Buxton
(the General Manager at the time) and Mr Barry Kirby (the Financial Manager
and the person to whom the Applicant reported directly);
8.2. soon after the Applicant commenced employment she found it necessary to
work extraordinary hours because she could not do what she had to do or
was told to do within normal office hours;
8.3. this required her to work overtime;
8.4. it is common cause that she was paid by the Respondent for some of this
overtime and in respect of other overtime she concedes that she was given
time off in lieu of payment;
8.5. in respect of the balance of the overtime (which she now claims) she says
that she raised this with Mr Kirby, her immediate superior. Although Mr Kirby
disputed that the Applicant raised with him overtime claims other than the
ones he agreed to, I come to the same conclusion about the issue even if I
accept the Applicant's version. Her evidence was that Mr Kirby said she was
either not entitled to overtime pay and that her predecessor had not been
paid overtime, or that he would get back to her but that he always eventually
said she was not entitled to overtime pay and that it would set a " precedent";
8.6. in my opinion the consistent and early refusal of her employer (through Mr
Kirby) to pay overtime in respect of the disputed claims must have indicated
to the Applicant that the overtime was not authorised. The early refusal to
pay overtime must have alerted the Applicant to the fact that any overtime
she continued to work, in the absence of clear authority to work paid
overtime, was at her own election;
8.7. the fact that the Applicant worked the disputed overtime at her own election
is consistent with the other evidence that :
8.7.1. the disputed claims formed by far the bulk of her overtime claims;
8.7.2. she left all of these claims out when she formulated and submitted a written
claim to the respondent on the 10 th of May 2001 (which Mr Kirby did agree
to);
8.7.3. the Applicant clearly knew how to claim overtime because, aside from the
claim on the 10 th of May 2001 she did successfully claim overtime on other
occasions;
8.7.4. the bulk of her overtime claims (the disputed claims) were never formulated
and put to the Respondent until after she had terminated her employment
with the Respondent;
8.8. whilst the Applicant did testify that she was told to do things by the following
day " no matter how long that took " (and to that extent this was an instruction
from her employer to work overtime) I am unable to identify and distinguish
such claims from the general body of claims she presented in court
because :
8.8.1. the Applicant did not give evidence about each and every claim on her
schedule but focused on an entitlement, collectively, to all of them;
8.8.2. in respect of overtime worked she conceded that she had taken time off
sometimes in lieu of being paid overtime, but there was no reconciliation
presented in this regard;
8.8.3. neither did she properly reconcile her schedule of claims set out at pages 59
to 62 of bundle A. For example, although the Applicant admitted receiving
overtime pay in the sum of R8 677,75 pursuant to her written claim of
10 May 2001, all of these claims are duplicated in her schedule of claims
and are therefore illegitimate;
8.8.4. the evidence establishes that not all deadlines were given at the end of a
particular working day, for the next day. Many of the deadlines were in fact
agreed deadlines which arose, so Mr Kirby testified, " in the nature of
accounting" read together with the schedule of agreed dates for the
performance of various things by the Applicant following a meeting with her
in that connection.
9. In the premises and on the totality of the evidence, the Applicant has not, in
my opinion, demonstrated that the overtime she claims was worked in terms
of a clear authority from her employer. In the result her claims for overtime
must fail.
10. At the commencement of the trial in this matter I was informed that the
Applicant was proceeding only in respect of the claim for overtime. No
evidence was therefore led by either party in regard to the claim for notice
pay. Paragraph 1.2 of the pretrial minutes records an agreement in regard to
the claim for notice pay. I asked the representatives for both parties if I
should make any order for costs in regard to this claim but, in view of the
aforegoing, it would be inappropriate to do so.
11. In the result I make the following order :
11.1. the Applicant's claims for overtime pay are dismissed with costs.
DATED at DURBAN this day of MAY 2003.
_____________________
N P WOODROFFE AJ