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SEKAO AND ANOTHER v THE OKAVANGO PUB & RESTAURANT 2006 (1) BLR 606
(IC)
Citation: 2006 (1) BLR 606 (IC)
Court: Industrial Court, Gaborone
Case No: IC No 4 of 2005
Judge: Ebrahim-Carstens J
Judgement Date: 0000-00-00
Counsel: Applicant in person. Mmekwa for the respondent.
Flynote
Employment - Dismissal - Validity of - Dismissal for misconduct to be both substantively and
procedurally fair - Fair reason for dismissal and fair disciplinary enquiry required - No disciplinary
enquiry held and applicant dismissed for mere suspicion of theft - Dismissal unfair.
Headnote
The applicant was employed by the respondent as a chef until his dismissal on
suspicion of theft. The applicant claimed compensation for unfair dismissal and overtime
allegedly due to him.
Held: (1) Regulation 4 of the Regulation of Wages (Hotel, Catering and Entertainment
Trades) Order (Cap 47:01)(SubLeg) sets out the number of hours an employee was
required to work, as well as the rest periods and overtime pay that an employee was
entitled to.
(2) An employees' wages and entitlements could not be compromised. Section 38 of the
Employment Act (Cap 47:01) made it an offence for an employer to enter into a contract
of employment contrary to the provisions of the Act. The applicant could accordingly not
have waived his rights to overtime.
(2) Dismissal for misconduct had to be both substantively and procedurally fair.
Accordingly there had to be a fair reason for the termination of the contract of
employment and the employer must have conducted a fair disciplinary enquiry to
ascertain that the employee had committed the alleged misconduct.
(3) There had been no disciplinary enquiry in the circumstances. Furthermore, an employer
could not dismiss an employee on the mere suspicion of theft. The applicant's dismissal had
accordingly been both substantively and procedurally unfair and the applicant was entitled to
compensation.
Case Information
Cases referred to:
Banyatsang v North West District Council (IC 42/98), unreported
Mamorare v Botswana Building Society (IC 277/02), unreported
Mokunki v Spar Supermarket (Maun) [1996] B.L.R. 234, IC
Moroka and Others v Feedem Catering Services Botswana (Pty) Ltd [1996] B.L.R. 935,
IC
Mosala v Car World (IC 2/97), unreported
Phirinyane v Spie Batignolles [1995] B.L.R. 1, IC
Application for compensation for unfair dismissal. The facts are sufficiently stated in the
judgment.
Applicant in person.
Mmekwa for the respondent.
Judgement
EBRAHIM-CARSTENS J:
The applicant was employed by the respondent as a chef at P1 500 per month from 6
March 2004 until his dismissal on 23 June 2004. He is claiming three months wages as
compensation for unfair dismissal, wages for five paid public holidays and overtime
allegedly due to him.
The respondent in its plea avers that:
'The applicant was not denied payment for the public holidays mentioned. At his suggestion he
and the rest of the staff had volunteered to work on public holidays and without overtime because the
restaurant, which he helped to establish, did not yet have business, having started on the 6th March
2004. In fact, for one month before the restaurant started, he helped to recruit and train staff for more
than two weeks in preparation for the opening of the restaurant without any payment to him. Initially he
was proud of the restaurant and wanted it to succeed. The applicant should not be allowed to claim
overtime now only because our relationship became bad.'
The respondent also contends that the applicant's dismissal was substantively fair since
he failed to account for a shortage of takings of about P800 on 22 June 2004. The
respondent however conceded that the dismissal was procedurally unfair
On my perusal of the papers, I discerned this to be a simple case. At the
commencement of the proceedings therefore, I endeavoured to direct the parties on the
appropriate law. In particular, I pointed out the provisions relating to overtime, paid
public holidays, and more especially s 37 of the Employment Act (Cap. 47:01).
Nevertheless, the respondent persisted in the view that the applicant was not entitled to
any payments for public holidays and overtime because of an arrangement between the
parties whereby the applicant allegedly gratuitously offered his services voluntarily and
for no charge.
Statutory Entitlements
I shall instantly set out the relevant law regarding the applicant's entitlements as an
employee. The general provisions regarding rest periods, hours of work, holidays and
other conditions of work are contained under Part VIII of the Employment Act (that is, ss
93 to 100). Part VII of the Act (ss 73 to 92) deal with protection of wages and other
payments due to an employee and inter alia, fixes wage periods and time of payment,
prohibits withholding of wages and unauthorised deductions from wages, and limits
assignment and attachment of wages
Section 73 of the Employment Act states that:
'73.
The Minister may, after consultation with the registered organizations of
employers and employees directly concerned, if such exist, by order published in the Gazette,
exclude from the application of all or any of
the provisions of this Part the wages
paid to categories of employees whose circumstances and conditions of employment are such
that the application to them of all or any of the said provisions would, in the opinion of the
Minister, be inappropriate.'
Various regulations have been promulgated for different categories of employees. The
applicant falls under the Regulation of Wages (Hotel, Catering, and Entertainment
Trades) Order (Cap 47:01) (Sub Leg) (the Order). Regulation 2 (1) states that:
'2. (1) This Order shall apply to all persons employed in any undertaking which consists of the
carrying on, whether for profit or not, of one or more of the following activities (a)
the supply of food or drink for premises licensed under the Trade and Liquor Act;
(b)
the provision of living accommodation for guests or lodgers; or
(c)
the provision of entertainment.
(2) In this Order "undertaking" includes any person, firm, business, company or club and the
activities of any body, whether corporate or unincorporate, whether carried on by way of trade not:
....'
Regulation 4 of the Order states that no person shall be required to work other than as
provided for under para 7(3), more than eight and a half hours per day or 51 hours in
any working week of six days. An employee shall also earn a rest period of not less than
24 consecutive hours in the course of each week. Regulation 7(1) provides that any
overtime worked shall be paid at the rate of the employees 'normal hourly rate plus onehalf of such rate (otherwise known as "time and-a-half")'. When an employee works on
any paid public holiday or rest period, he shall be paid at the overtime of 'twice his
normal hourly rate (otherwise known as "double time").'
Paid public holidays
The paid public holidays applicable to the applicant are New Year's Day, Good Friday,
Easter Monday, President's Day, day following President's Day, Botswana Day, 1
October, and Christmas Day - See reg 6 of the Order.
I shall now apply the facts of this case to the law set out above. The applicant claims the
following days:
9 April 2004
10 April 2004
12 April 2004
1 May 2004
20 May 2004
Good Friday
a Public Holiday
Easter Monday
Labour Day
Ascension Day
It is clear from the aforementioned regulation that the applicant is only entitled to Good
Friday and Easter Monday as paid public holidays at double time. He is therefore due
two days wages for these. Applying the divisor of 26 in terms of s 95(8) of the
Employment Act, this equates to P115.38 (P1 500 divided by 26 x 2).
Overtime
As regards overtime, the respondent argued that this was not part of the contract of
employment, but a verbal private arrangement that existed between the parties
premised on the cordial and friendly relationship between the applicant and Mrs
Maswabi for the former to gratuitously work overtime without pay. If such be the case,
then this would not be a 'trade dispute' in terms of the Trade Disputes Act (Cap 48:02).
The respondent has taken no such exception or point. This argument is therefore
dismissed.
In any event, friendship aside, the working relationship between the parties was that of
employer and employee. Contracts of employment may be oral or in writing, express or
implied (s 14(1) of the Employment Act). I fail to see how anything touching upon
conditions of service could be anything other than part and parcel of an employment
contract.
Contracting out
Subsequently in her evidence, Mrs Maswabi said that in any case, the payment for
overtime was conditional upon the respondent making profit. As the business made no
profits, no overtime was payable. An employees' wages and entitlements may not be
compromised. In 1997 Botswana ratified the Protection of Wages Convention C95 and
our statutory provisions run in tandem with the principles therein. Moreover, ss 37 and
38 of the
Employment Act clearly state that
'37.
Where a contract of employment, whether made before or after the
commencement of this Act, provides for conditions of employment less favourable to the
employee than the conditions of employment prescribed by this Act, the contract shall be null
and void to the extent that it so provides.
39.
Any employer who enters into a contract of employment or a collective labour
agreement containing terms contrary to the provisions of this Act shall be guilty of an offence
and liable to the penalties prescribed by section 151(c).'
In addition, reg 9 of the Order reads:
'9.
The wages and conditions of employment in force between employers and
employees at the commencement of this Order shall not be altered for the worse G in respect
of employees but to the extent that the same are not in conflict with this Order and the parties
thereto shall be subject and entitled to the benefits of the provisions of this Order.'
All the aforesaid statutory provisions are couched in imperative terms and it is trite law
that the word 'shall' in Botswana statute cannot mean anything else other than 'shall';
and that 'may' is permissive and empowering - see Moroka v Feedem Catering Services
Botswana (Pty) Ltd [1996] B.L.R. 935, IC. See also Mosala v Car World (IC 21/97),
unreported.
Although the applicant denies it, the respondent contends that he contracted out of the
rights bestowed upon him by law. In a matter where the court had to decide whether an
employee may waive his rights to strict compliance with the imperative provisions on
probation contained in s 20 of the Employment Act, Mamorare v Botswana Building
Society (IC 277/02), unreported I said:
'Waiver/acquiescence by employee
Could the Applicant be seen to have waived his right to strict compliance with s 20 (1)? I think
not.
In the Connie McLean vs. CCC case at page 19 I said:
"There is nothing contained in the aforesaid Section 20 (3) which permits an
employee to waive his rights to the written notification of the length of his probationary period
prior to entering into a contract of employment. In the matter of Kgosiemang Mogopi vs. Nata
Timber Industries (Pty) Ltd Case No. IC. 194/96 dated 31st July 1997, Hardisty A.J. said at
page 18 of the typed record:
'Whilst the Court accepts the general principle that any one may
renounce a law made for his special benefit (quillibet potest renuntiae juri pro se
introducto) such renunciation is not permissible where matters of public policy or Public
interest are involved. (S.A. Eagle Insurance Cp. Ltd vs. Bavuma 1985 (3) SA 42; Food
and Allied Workers Union and Others vs. Virginia Milling Co. 1992 LCD 37 (IC)'."
Section 20 (4) of the Employment Act states that:
"Any person who contravenes this section shall be guilty of an offence and liable
to the penalties prescribed by section 151 (b).''
The prescribed penalty is a fine not exceeding P1,000.00; or a term of imprisonment not
exceeding 6 months; or both.
That the Legislature has deemed it fit to include a penal provision under s 20 is pertinent. When
the Legislature removed the requirements for the prospective employer to advise the prospective
employee of the effect of subs (2) by the 1992 Amendment; the legislature left this penal provision
intact. This suggests to me that this is a matter of public interest or public policy.
I find therefore that the applicant could not and did not waive his right to strict compliance of s 20
(3).'
Section 38 makes it an offence for an employer to enter into a contract of employment
containing terms contrary to the provisions of the Act. The legislature has deemed it fit
as a matter of public interest and policy, and in accordance with its international
obligations, to protect workers' wages. Even if I were to accept the respondent's
evidence, I find the applicant could not waive his rights to overtime.
The applicant's claim however was imprecise and vague. He claimed overtime for the
whole of March and April on the basis he worked every single day from 8 am to 11.30
pm although he did not challenge Maswbi's evidence they had two hours off. He insisted
he was a professional chef although he had only a junior certificate and no other
qualifications. He said he received on the job training at several places. Section 2(3) of
the Employment Act provides that the provisions of Part VIII shall not apply in the case
of an employee who falls into a category of persons commonly known as managers,
administrators, or executives or professional staff or into some other category of
persons of the same or a similar status.
It does not appear to me that the applicant is a professional chef. In any event I find I
need not decide this point as the applicant's unquantified claim for overtime is vague,
imprecise and not proved. This claim is therefore not sustainable.
Unfair dismissal
Mrs Maswabi said the applicant, together with the cashier, was dismissed for serious
misconduct in that on 22 June 2004, he failed to account for the portions of raw food in
relation to the sales of food prepared and sold to customers and outside catering. She
said the applicant did not properly record the number of orders and the cashier failed to
accurately record money received from the waiters. As a result, food of a sales value of
P800 was missing. She summarized that this failure to keep proper records was
deliberate so, that the applicant and cashier could steal the revenue.
It is trite law that a dismissal for misconduct must be substantively and procedurally fair.
This means that there must be a valid and fair reason for the termination of the contract
of employment and that prior to such dismissal, the employer must conduct a fair
disciplinary enquiry to ascertain that the employee concerned committed the alleged
misconduct.
The guidelines for a fair disciplinary enquiry were set out in the locas classicus
Phirinyane v Spie Batignolles [1995] B.L.R. 1, IC. Since they have been set out in so
many countless judgments of this court, I need not repeat them here.
It is conceded that there was no disciplinary enquiry. Mrs Maswabi however said she
gave the applicant an opportunity on 22 and 23 June 2004 to explain what could have
gone wrong. The applicant denies this and says Mrs Maswabi simply called a full staff
meeting on 23 June 2004, shouting and complaining of the money. She informed this
meeting that she had decided to dismiss the chef and cashier in view of her
summations.
An employer may not dismiss an employee on mere suspicion of theft - see Mokunki v
Spar Supermarket (Maun) [1996] B.L.R. 234, IC and Banyatsang v North West District
Council (IC 42/98), unreported.
In the circumstances the court finds that the applicant's dismissal was both
substantively and procedurally unfair. In terms of s 24 of the Trade Disputes Act (Cap
48:02), the applicant may therefore be entitled to compensation.
Compensation
In assessing the amount of appropriate compensation to be paid, the court may
consider the following factors under s 24(4):
'(a)
The actual and future loss likely to be suffered by the employee as a result of the
wrongful dismissal;
(b)
the age of the employee;
(c)
the prospects of the employee in finding other equivalent employment;
(d)
the circumstances of the dismissal;
(e)
the acceptance or rejection by either the employer or employee of any
recommendation made by the Court for the reinstatement of the employee;
(f)
Whether or not there has been any contravention of the terms of any collective
agreement or any law relating to employment by the employer or the employee;
(g)
The employer's ability to pay.'
I shall consider factors (a) to (c) together. The applicant is a youthful 'chef' although he
has no formal qualification for the trade. His prospects should be good. His
unchallenged testimony is that he was induced into giving up a good job at News Café
at the Syringa Lodge in order to work for the respondent. He suffered loss as he was
unemployed for some four months.
The circumstances of the dismissal are that it was both substantively and procedurally
unfair. This factor favours the applicant.
Factor (f) is relevant and favours the applicant because the respondent contravened the
law relating to the employee's entitlements. As regards factor (g), the respondent has
not told the court that it is impecunious or unable to pay any award.
In taking the several factors into account, the court finds that compensation of three
months wages is not inappropriate. It is so awarded.
Determination
In all the circumstances of this case, the court makes the following determination:
1.
The respondent unlawfully withheld the applicant's entitlements to paid
public holidays and alleged overtime.
2.
The applicant has however not proved any claim for overtime.
3.
The respondent is hereby directed to pay the applicant the sum of
P115.38 being paid public holidays worked but not paid at double time.
4.
The respondent is further directed to pay the applicant the sum of P4 500
(3 x P1,500) being compensation.
5.
The respondent is further directed to make payment of the aforesaid
sums, in all P4 615.38 to the applicant through the office of the registrar of this court on
or before Friday 26 May 2006.
6.
No order is made as to costs.
We agree on the facts:
M B S Leselwa
Nominated Member (BOCCIM)
R Tshephe
Nominated Member (Union)
Application granted.