Majwe Mining wins overtime case against employees

Goitsemodimo Kaelo | Friday November 10, 2017 16:14

 

Majwe Mining Joint Venture is contracted by Debswana at the Jwaneng diamond mine Cut 8 project. The workers lost their case in which they demanded the company to pay them overtime allowances computed by utilising average hours over a three weeks’ cycle in terms of section 97 (1) as read with section 37 (1) of the Employment Act.

The workers had dragged their employer to court claiming that they are forced to work whilst being paid less overtime allowances than what they are entitled to. It emerged from court papers that since 2012, the company refused to increase overtime payment after the Commissioner of Labour granted it an exemption, allowing it to increase work time beyond 12 hours daily.

It is said that the employer has been utilising average hours over a four weeks’ cycle, as opposed to average hours over a period of three weeks as provided for by section 97(1) as read with section 37(1) of the Employment Act. The employees argued that such practice by the company was unlawful and that the Commissioner of Labour's exemption was illegal under the law. However, Justice Boipuso Tshweneyagae dismissed the employees’ application.

Although she agreed with the applicants that the exemption given to the company by the Commissioner was unlawful, she however said the Commissioner was exercising her administrative duties.

She said the employees ought to have challenged the exemption through an application to seek an order nullifying it.

“The administrative decision of the Commissioner remains valid until challenged and set aside by the court on an application,” Tshweneyagae said.

Tshweneyagae further said the company acted on the Commissioner’s exemption for over four years without it being challenged until when it was due to expire in December 2016. As such, she said it would be insensible to order the company to pay the employees the overtime they claim they were entitled to in that period when the exemption was effective.

Mboki Chilisa represented the employees in this matter.