DISTRIBUTABLE
(66)
Judgment
No. SC 85/04
Civil
Appeal No. 266/03
LEVER
BROTHERS v PALMER BIMHA AND NINETY-FIVE OTHERS
SUPREME
COURT OF ZIMBABWE
CHIDYAUSIKU CJ,
MALABA JA & GWAUNZA JA
HARARE,
SEPTEMBER 6 & 30, 2004
H
Zhou, for the
appellant
J
Dondo, for the
respondents
GWAUNZA
JA: The respondents are employed by the appellant as shift
workers. The parties have had a longstanding dispute concerning
the
hours shift workers are required to work during night shifts.
It
is not in dispute that the appellant operates three shifts a day for
five days a week, for the hours indicated below
1. Morning
shift : 7 am 3 pm;
2. Afternoon
shift : 3 pm 11 pm;
3. Night
shift
(i) Monday
to Thursday : 11 pm 7 am;
(ii) Friday : 11 pm
8 am;
(iii) Sunday : 12 midnight
7 am.
It
is also common cause that the working hours for shift workers are
regulated by s 6(2) of the Collective Bargaining Agreement:
Detergents, Edible Oils and Fats Industry (Statutory Instrument
89/1997), which provides as follows:
The
ordinary hours of work for shift workers shall not exceed forty-five
hours per week, or nine hours in any period of twenty-four
hours.
The
point of law raised by the appellant on appeal relates to the
interpretation of this clause, and the computation, based on such
interpretation, of the hours that workers on night shifts should
work.
The
appellant argues that the working hours for the night shift should be
reckoned so as to exclude the thirty minute break that
the workers
are allowed per shift. This would translate to six-and-a-half hours
on Sunday, seven-and-a-half hours on Monday, Tuesday,
Wednesday and
Thursday, and eight-and-a-half hours on Friday. By the appellants
calculation, the total thus worked per week
would be forty-five
hours, a period which accords with the regulated hours.
The
respondents, in disputing the appellants interpretation of s 6(2)
of Statutory Instrument 89/1997, contend that the
thirty minute
breaks are included in the working hours for the night shift. By
their calculation, this meant that night shift workers
worked a total
of forty-eight hours per week. This exceeded by three hours the
regulated period of forty-five hours. It is contended
for the
respondents that had the legislature intended the thirty minute
breaks to be excluded, it would have made a specific provision
to
that effect. The respondents also argue that the extra time
they were required to work during night shifts should be taken
as
overtime and that they should be paid accordingly.
The
Labour Relations Tribunal (the Tribunal) (now the Labour Court)
was persuaded by the respondents submissions, and ordered
that the
respondents be paid their back-pay and overtime from 1 September
1999 to 1 September 1996.
The
appellant now appeals against that order.
It
is contended for the appellant as follows in para B.5 of its
heads of argument:
5. It
is respectfully submitted that the court a quo
was wrong in determining that the legislature should have been
specific if it wanted to exclude the thirty minutes from the working
time. That reasoning, with respect, is fundamentally wrong in two
respects, namely
(a) the legislature specifically
excluded the thirty minutes from the working time by providing for
that break. During that thirty
minute break the employee is thus
excused from work, and may be enjoying his/her drink or minding some
other personal business;
(b) by its very nature, a break
means that the employee temporarily takes leave of his work for
thirty minutes. It would, therefore,
have been superfluous to state
that the time when the employee is on thirty minutes leave from his
work shall not be included as
part of his working time. That simply
would not make sense, with respect.
I
am persuaded by these submissions.
The
provision for the break, referred to in para (a) above, is found
in s 6(3) of Statutory Instrument 89/1997, which
reads as
follows:
No
employer shall permit a shift worker to work for a continuous period
of more than five hours without a break of at least thirty
minutes.
As
I understand it, this provision draws a distinction between the time
that workers are actively and productively engaged in their
work, and
the time that they are not. During the latter period, the workers
are free to take a nap, rest, take refreshment, and
attend to
personal or other business entirely unconnected with their work. It
would therefore, in my view, not be accurate to suggest,
as the
respondents do and the Tribunal found, that the period during which
the workers are thus employed in leisurely activities
should count
as, and be included in, the time that they are productively engaged.
This circumstance is not altered by the fact
that such leisure time
may be spent within or at the workplace, or that the employer, in
terms of s 6 of Statutory Instrument
89/1997, may provide
beverages for the workers during the break.
Mr Dondo,
for the respondents, correctly submits that one of the golden rules
of interpretation of statutes is that words must be given their
grammatical and ordinary meaning unless absurdity results. See
Mudada v Tanganda Tea
Co Ltd 1999 (1) ZLR
374 (S) at 377; and Chegutu
Municipality v Manyora
1996 (1) ZLR 262 (S) at 264D. If this rule is applied to the
interpretation of s 6(2) of Statutory Instrument 89/1997, I am
satisfied that the words hours of work would refer to the time
that the workers are actually engaged in work. That, in my
view,
would be the ordinary and grammatical meaning of the phrase. This
interpretation is reinforced by the paragraph immediately
following
para 6(2), which distinguishes between the time the workers are
working and the time they are not.
I
would therefore uphold the appellants contention that the hours of
work per week, that are referred to in s 6(2) of Statutory
Instrument 89/1997, exclude the thirty minute breaks that the night
shift workers take during each shift. It follows that its
calculation
of the actual hours of work per week for night shifts, as
forty-five, is correct.
This
finding, I am satisfied, effectively settles the dispute concerning
whether or not the extra hours of work that the respondents
aver they were made to work constitute overtime. As correctly
observed for the appellant, overtime is defined in s 3
of
Statutory Instrument 89/1997 as any time worked outside the
ordinary weekly hours of work required to be exhibited in terms
of
subs (2) of s 27.
Subsection (2)
of s 27 of Statutory Instrument 89/1997 requires every employer
to exhibit a notice, in the prescribed
manner, showing the ordinary
working hours per week and the normal daily hours of starting and
finishing work for each class or group
of employees. In compliance
with s 27(2), the appellant would therefore be required to
exhibit a notice showing the actual
hours workers in each shift would
be required to work, exclusive
of the break times. Including the break time in the hours of work
would be acting contrary to the meaning of s 6(2) of Statutory
Instrument 89/1997. The fact that the appellant may have done so,
as the respondents seem to suggest, should in my view not be
taken as
an acceptance by the appellant that the thirty minute break time is
to be considered as part of the actual hours worked.
If
it is accepted, as I have found, that the thirty minute breaks are
not included in the hours of work for the night shift, it
becomes
evident that they cannot constitute overtime, as defined in Statutory
Instrument 89/1997. Overtime refers to actual work
done, beyond the
normal working hours, and no work is done during the thirty minute
breaks.
All
in all, I find there is merit in the appeal, which must therefore
succeed. It is accordingly ordered as follows
1. The appeal be and is hereby
allowed with costs.
2. The judgment of the Labour
Relations Tribunal is hereby set aside and substituted with the
following
1. The
appeal is accordingly allowed.
2. The decision appealed against
is hereby set aside.
CHIDYAUSIKU CJ:
I agree.
MALABA JA:
I agree.
Coghlan,
Welsh & Guest,
appellant's legal practitioners
Chinamasa,
Mudimu & Chinogwenya,
respondents' legal practitioners
