Today's workspace

JOSEPH MASANGO | Wednesday January 13, 2010 00:00

Lucas works during a paid public holiday - How should an employee who works on such a day be paid?

There have been disagreements regarding how the Employment Act (Chapter 47:01) requires an employee who works on a paid public holiday or on a day observed as a paid public holiday, to be paid.  

The question presented is whether an employee who works on a paid public holiday or on a day observed as such should be paid at least double his/her wages which are payable on an ordinary working day, or  be paid at least double his/her wages which are payable on an ordinary working day PLUS his/her usual daily basic pay.

It is submitted that the correct position is the former, i.e. the employee should be paid at least double his/her wages.  How so?

Section 99 subsections (2) through (4) of the said Act read thus: 
'(2) Where a paid public holiday falls on a rest day the day next following the rest day which is not itself a rest   day shall be deemed, for the purposes of this section, to be a paid public holiday.

Any employee who works on a paid public holiday or on a day observed as a public holiday by virtue of the provisions of subsection (2) shall -

(a)  be paid at least double the wages he would have been paid had the day been an ordinary working day;   or ....

(4) Subject to subsection (3), the employer shall pay to his employee his basic pay in respect of every paid   public holiday.'

Differences in interpretation arise when regard is had to subsection '3' as read with subsection '4', above.  In one case, before our High Court was a dispute over what the words 'at least double' as in (3) (a), as read with the words 'Subject to sub-section (3)' as in (4), above, translate to when it comes to paying the employee. 

The High Court interpreted the meaning of the words 'wages' and 'basic pay' found in Section 99 (3) (a) and (4) respectively as pointing to two different types of remuneration.  The Court also made reference to, among other sources, judgments by courts in other countries regarding the meanings which the words 'subject to' could assume. One such judgment was that of Akisatan Apera of Iporo and Others v Akinwande Thomas and Others 1950 AC 227.  In it, that foreign court's interpretation based on the facts before it was that the words 'subject to' should not have a limitation of original rights, but should mean 'without prejudice to' or 'notwithstanding'. 

Taking into account the foregoing and other provisions of the Act, our High Court concluded, among other things, that the words 'subject to' preserve rights including the one provided in (3) above, and should in this particular matter mean 'without prejudice to' or 'notwithstanding'.  Finding in favour of the employee, his Lordship held that the employees should therefore be paid double their wages PLUS their basic pay. 

Following an appeal, our Court of Appeal held that while the concepts of 'wages' and 'basic pay' are different, the difference itself is immaterial in the matter at hand.  Turning to the meaning of the words 'subject to', the Court also made reference to the foreign court judgments from New Zealand, Nigeria and Canada.  

I have gone through two of these judgments, one being that of Alhaji Umaru Abba Tukur v The Government of Gongola State SC 1989, from the Supreme Court of Nigeria.  In it, at issue was the jurisdiction of a particular Nigerian court to determine and grant reliefs sought by the appellant, a Chief, following, among others, the Chief's claims of violation of his right to be served with a charge of misconduct with sufficient particulars, and to be afforded a hearing, before officials could take a certain course of action against him.

Below are a few quotes from the Nigerian Alhaji Tukur judgment on the meaning of the words 'subject to':

'The expression 'subject to' subordinates theprovisions of the subject section to the section referred to which is intended not to be affected by the provisions of the latter... (Aqua Ltd. V. Ondo State Sports Council (1988) 10-11 S.C.N.J. 26) and
'The phrase 'subject to'...subjects provision of the subject subsection to the provision of the master subsection. Where there is no clash the phrase does nothing. If there is collision, the phrase shows what is to prevail... See Clark Ltd. V. Inland Revenue Commissioners (1973) 2 All E.R. 513, 520)'.

One of the Justices in the Alhaji Tukur case stated thus 'Now it is of the first principle of interpretation that the maker of any law, be it constitutional or otherwise, does not use any words in vain'(emphasis mine). 

Our Court of Appeal went on to give the phrase 'subject to' the meaning of 'except as curtailed by'.  This meaning is at one with the interpretation given in the Alhaji Tukur case.  In the result, finding in favour of the employer, their Lordships of the Court of Appeal held that the correct interpretation is that the employee should be paid double his wages which are payable on an ordinary working day.   This then settles the position in Botswana.

What can employers, managers and employees take from the above?
In the work space, there are documents that are frequently drafted for use by line managers and employees.  Examples are contracts of employment, Collective Labour Agreements (also known as Collective Bargaining Agreements in some countries), job descriptions or profiles, organizational policies and procedures, and other rules and regulations.  I have had the opportunity to peruse some such contracts, Agreements and policies in various countries.  Legal Latin phrases such as 'in pari materia', 'inter alia', 'mutatis mutandis', 'ultra vires' and 'subpoena duces tecum' were put to use in certain of these documents.

In one meeting, staff asked the supervisor first to pronounce and thereafter to explain to them the meaning of one such phrase, so that they would then understand what management expected them to do. 

He could do neither.  Amidst laughter from his subordinates for failing to make answer, he sped to his line manager for help.  The line manager was not sure.  By the time he returned to join the meeting, having eventually sourced the answer from elsewhere, the supervisor had forgotten what he had been told to be the meaning....You may therefore want to avoid using certain language which is sometimes used, the world over, in drafting statutes and other legal instruments, except where, for some reason and in certain respects, this is necessary.  If you have to include the words, explain them out in the text, or have a page which has definitions.  Some organizations do this well.  More importantly, it is not simply a question of avoiding certain words. 

This will not settle the difficulties sometimes experienced in the work space.  Simply constructing a group of any type of words together in an effort to come up with a coherent meaning has been proven to, of and in itself, convey some meaning totally different from the one the drafters had intended. 

Fortunately, the science of interpretation of written texts can assist one to get the intended meaning in circumstances where an erroneous one presents itself.  However, for line managers, supervisors and employees, this may be unfamiliar territory.

Therefore organizational interventions designed to bring about improved understanding by the people whom the documents are drawn up for, come highly recommended. Overall, what I have for the readers are:

(a)  the interpretation of the Act, as set out above, regarding the payment of an employee who works on a paid public holiday.  Hopefully this will reduce or eliminate grievances and/or disputes triggered by differences in interpreting the said provisions and

(b)  that drafters ought, overall, to be cautious as they go about drafting documents for use in and by organizations, to hopefully reduce or eliminate consequences such as are outlined above.  This article does not purport to be a full and complete treatment of the issues discussed. 

Masango is in the Doctor of Laws (LLD) programme.  He writes fully and completely in his personal capacity.  As such, his views do not represent, in any way whatsoever, those of any institution or  organisation/s he may be associated with however and whenever.