Yellowcob Enterprises T/a Braeside SPAR V F. Mataga & 73 Others

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/788/16
HELD AT HARARE ON 13TH SEPTEMBER, 2016
CASE NO. LC/H/720/15
AND 16 DECEMBER, 2016
JUDGMENT NO. LC/H/788/16
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IN THE LABOUR COURT OF ZIMBABWE	   JUDGMENT NO. LC/H/788/16

HELD AT HARARE ON 13TH SEPTEMBER, 2016    CASE NO. LC/H/720/15

AND 16 DECEMBER, 2016

In the matter between:-

YELLOWCOB ENTERPRISES						Appellant

T/A BRAESIDE SPAR									    And

F. MATAGA & 73 OTHERS						Respondent

Before the Honourable Mhuri, J.

For Appellant	:	Mr T. Marume (Legal Practitioner)

For Respondents	:	Mr S. Muhambi (Senior Organising

Secretary CWUZ)

MHURI J.

On the 20th July 2015, the arbitrator issued an award in which he ordered Appellant to redo overtime calculation and pay Respondents 50% of the outstanding amounts.

The term of reference which the arbitrator was to consider was whether or not complainants (Respondents) were underpaid for public holidays.

This appeal is against this arbitral award. Appellant raises two issues for determination by this Court.

These are;

Respondents legal persona and

The interpretation of section 7 of the Collective Bargaining Agreement (CBA) of the Commercial Sectors, Statutory Instrument 45 of 1993.

It was Appellant’s contention that F. Mataga and 73 others is not a legal persona. The award by the arbitrator citing F. Mataga and 73 others and made in favour of a non-legal persona is a nullity.

It contented further that a nullity cannot be amended.

As regards the second issue, Appellant took issue with the Arbitrator’s interpretation of section 7 (3) (a) and (b) of the Collective Bargaining Agreement. It contented that the payment of overtime cannot be separated from the normal wage. The Collective Bargaining Agreement does not state that overtime is to be paid over and above the normal wage.

Respondents’ submission as regards the first issue was that in their initial letter of complaint to the National Employment Council for the Commercial Sectors, they attached a list of all the 74 Respondents. The National Employment Council and the Appellant knew right from the beginning who the Respondents were. Appellant in response to the complaint submitted documents listing the employees including all the Respondents to the National Employment Council. Appellant did not raise this issue then.

As regards the second issue, it was submitted on behalf of the Respondents that where an employee works overtime he / she should be paid not less than double the hourly rate as overtime over and above the normal wage granted by the Act and the regulations.

Produced and submitted by Respondents’ representative is a letter dated the 23rd of March 2014 addressed to the Senior Designated Agent raising the issue of wrong calculation of overtime by Appellant. In the letter reference is made to the annexed list of claimants. The total number of claimants there on are seventy four (74) the first one being Francis Mataga.

The matter proceeded to conciliation with the claimants cited as F. Mataga and 73 others. It is not in dispute that Appellant submitted before the arbitrator a list of its employees, which included all the 74 Respondents. In my view, all the Respondents were clearly identified. The fact that the arbitrator in his award did not cite the Respondents individually does not render the award fatally defective. I therefore dismiss this issue as raised by the Appellant.

According to the record, the arbitrator was to consider whether or not the claimants (Respondents) were underpaid for the public holiday. The issue therefore was not underpayment of overtime for work done in excess of normal working hours on a working day of the week.

Section 7 (3) of the Collective Bargaining Agreement which is the subject of this appeal reads as follows;

(3)	 “Subject to the provisions of section 6, where an employee is entitled to be paid for overtime, he shall be paid in respect of each hour worked:-

(a) 	in excess of normal working hours on a  working day of the week, at one and half times his current hourly wage;

(b) 	on a day off or holiday, at double his current hourly wage.”

G. M. Cockram in his book Interpretation of Statutes Third Edition states at page

36,	“The Court will usually begin its interpretation of a statute by applying the literal rule, that is, that the words of a statute must be interpreted in their ordinary literal meaning.”

Where the words used in the statute are clear and unambiguous, the Court is to place upon them their grammatical construction and give them their ordinary meaning.

In casu the words used in section 7 (3) are clear and admit of no ambiguity at all. They are to be given their ordinary and grammatical meaning. In that regard there is no need for me to go further and apply other cannons of interpretation. It is clear from subsection 3 that the intention of the legislature was to have an employee paid for overtime worked.

As for subparagraph (a), and with regards to work done after the normal working hours in respect of a normal day, this excess in time is to be paid at 1½ times the hourly rate of normal working hour.

An example of this would be;-

Monday – 	normal working day

Monday – 	working hours

8am – 5pm

Monday 	overtime

5pm – 6pm

If for each, hour (8am – 5 pm) an employer’s wage is $1-00, his wage for the one hour overtime 5pm – 6pm will be $1.50.

If the days’ wage (8am – 5pm) is $8-00, the employee will be paid a total of $9.50 for the day, (that is $8.00 + $1.50)

Subparagraph (b) is equally clear and unambiguous. An employee who works on a holiday say Christmas day and a day on which he is officially off, he is to be paid double, that is x 2 his hourly wage.

An illustration of this would be:-

Monday off day or christmas day

Monday hours of work 8am – 5pm

Monday current hourly rate	$1-00

The employee will be entitled to $2-00 for every hour worked on that day.

If the total hours for this day are 8 hours and he works these 8 hours, the employee is to be paid $16-00 (that is 2 x 8).

These two subparagraphs are not to be interpreted to mean that over and above the normal daily or hourly wage, must be added the hourly overtime wage for example that if the employee earns $1-00 per hour and works one hour overtime he is entitled for that extra hour $2.50 (that is $1-00 + $1.50), nor does it mean that if he works on a holiday he will be entitled to $3.00 per hour (that is $1-00 + $2-00 overtime).

If the crafters of the Collective Bargaining Agreement intended that, they would have stated so in the provision. It is clear that this was not their intention if regard is had to be words used in the provision.

In his analysis of the submissions by the parties, the arbitrator found as correct, Respondents’ interpretation that they were supposed to be paid not less than double the hourly rate as overtime over and above the normal wage. His reasons for accepting the Respondents’ version is correct but where I find error is where he accepted that the overtime payment is over and above the normal wage.

Considering the term of reference is whether or not Respondents were underpaid for public holidays, I will set aside the award and remit the matter to the same arbitrator for him to determine the dispute using the interpretation given in this judgment.

Consequently it is ordered that the award be and is hereby set aside and the matter be and is hereby remitted to the same arbitrator for a re hearing.

Each party is to bear its own costs.

Matsikidze & Mucheche	 – Appellant’s legal practitioners