IN  THE CONCILIATION, MEDIATION  AND ARBITRATION COMMISSION (CMAC)

Held in Manzini                         MNZ 686/07

In the matter between:

Nomphumelelo Simelane                Applicant

AND

Buhle Restaurant                   	     Respondent

CORAM:

Arbitrator                   		    MR Robert S. Mhlanga
For the Applicant            	     Mr J. Dlamini
For the Respondent         	     Mr D. Msibi

ARBITRATION AWARD

VENUE : CMAC OFFICES ENGULENI BUILDING GROUND FLOOR, MANZINI

1. DETAILS OF HEARING AND REPRESENTATION

1.1   The Applicant is Nomphumeleo Simelane, and she was  represented  by  Mr John  Dlamini  a  Union official.   I  will  refer to  the  Applicant  as  Miss Simelane or the Applicant as the case may be.

1.2   The Respondent is Buhle Restaurant, which was duly represented by Mr David Msibi.

2. BACKGROUND OF THE DISPUTE

2.1   The   Applicant  is  the   Respondent's   former employee.

2.2   The dispute between the parties is in relation to overtime pay, it being alleged by the Applicant that,  while  she  was  under  the  Respondent's employ,  she  used  to  work  overtime,  but the Respondent never paid her for overtime worked.

2.3   The Applicant also alleged that the Respondent unlawfully deducted from her salary for January, 2007 a sum of E250-00.

2.4   The overtime pay claimed by the Applicant dates from December, 2006 to September, 2007.

2.5   The total amount claimed by the Applicant is E5, 351-00 which is respect of overtime pay plus the said same of E250-00.

2.6   The  Applicant,  before  she  reported  a  dispute, demanded from the Respondent the payment of her overtime as evident from her letter of demand dated 10th October, 2007.

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2.7   Following the Respondent's failure to comply with the Applicant's aforesaid demand;  subsequently the Applicant reported a dispute to CMAC.

2.8   The   dispute   was   conciliated   upon,   but unfortunately  it  was  not  resolved,  hence  the commission  issued  a  Certificate  of  Unresolved dispute herein.

2.9   The  parties by consent referred the matter to arbitration for the determination of the unresolved dispute.

2.10  A pre-arbitration meeting was held on the 3rd July, 2008, the purpose of this meeting inter alia, was to enable the parties to exchange the documents to used (if any) during the arbitration hearing, to determine the number of witnesses each party may call and to set a date suitable to the parties for the arbitration hearing.

3. ISSUE TO BE DECIDED

In the present case the issue I am called upon to decide is the overtime pay allegedly owed by the Respondent to the Applicant. In other words I have to determine whether or not the Applicant is entitled to the alleged overtime pay which is set out in her report of dispute (see Annexure "A" attached thereto).

4. SUMMARY OF EVIDENCE 4.1   APPLICANT'S CASE

4.1.1  The Applicant was the only witness in her case.

4.1.2  Nompumelelo Simelane, hereinafter referred to as the Applicant testified under oath, that she was

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formerly employed by the Respondent (Buhle Restaurant) as a waitress on the 15th December, 2006.

4.1.3  It was the Applicant's testimony that her working schedule was to the effect that she started work at 7:00am and knocked off at 6:00pm from Monday to Sunday.  She also testified that she worked even during the public holidays.   The Applicant said  that  she  worked  three  (3)  Sundays  per month.  The Applicant stated that during Sundays and public holidays she started work at 8:00am and knocked off at 4:00pm.  The Applicant alleged that she worked eleven (11) hours per day.  The Applicant  said  that  the  Respondent  owes  her overtime for the period from December, 2006 to September, 2007.

4.1.4  The Applicant further stated that she never at any stage waived her right to claim her overtime pay from  the  Respondent  for  overtime  worked (emphasis added).

4.1.5  On the other hand, the Applicant testified that the Respondent unlawfully deducted a sum of E250-00 from her salary in that she never authorized the said deduction.

4.1.6  With regard to lunch hour, the Applicant alleged that she was not allowed to go to lunch or to spend the lunch hour the way she would like; but she was restricted to eat inside the Respondent premises and she was allocated time which was less than the statutory prescribed lunch hour.

CROSS EXAMINATION

4.1.7  During   cross  examination   the   Respondent's representative put it to the Applicant that it is not

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true that she worked overtime while she was in the Respondent's employ. In response, the Applicant disputed this allegation; the Applicant maintained that she used to work overtime. She said that she marked in her calendar each time she had worked overtime.

4.1.8  The Applicant was also asked as to what were the days on which she worked overtime in December, 2006.  The Applicant's response was not clear, the Applicant  was  evasive  in  that  she  failed  to specifically  mention  the  days  on  which  she allegedly worked overtime in December, 2006.

4.1.9  The  Applicant  testified  that  she  was  given  or allowed to take (2) days off duty per month, and this occurred every month end.

4.1.10 The Applicant conceded that she used to go to lunch during the lunchtime.

4.1.11 The   Applicant   also   testified   during   cross examination that she was supposed to be paid overtime for working on  Sundays  at  double  or two times the normal hourly rate.
4.1.12 Under cross examination the Applicant admitted that there was a time when she was absent  from work due to sickness.

4.1.13 The Applicant also admitted  that she  made a mistake  in  her  computation  of  overtime  by including the days when she was not at work.

4.1.14 During  the  cross  examination  the  Applicant disputed the fact that she was working eight (8) hours a day.

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4.1.15 The Applicant admitted that she did not claim the payment of overtime while she was still working for the Respondent.

4.2   RESPONDENT'S CASE VERONICA THWALA'S TESTIMONY

4.2.1   Only one (1) witness testified on behalf of the Respondent  and  that  was  the  Respondent's Director Mrs Veronica Thwala.   I will refer to this witness as Mrs Thwala or RW1 as the case may be.

4.2.2  Mrs Veronica Thwala duly sworn testified that she is the Respondent's Director.  She testified that the Applicant was Respondent's former employee. She stated that the Applicant was initially engaged on a temporary basis in or about December, 2006 and she worked for one (1) month (December, 2006).

4.2.3   Mrs Thwala testified that the Applicant was reengaged in or about January, 2007 as a waitress. In or about February, 2007,  it is said that the Applicant  had  a  shortage  of  E250-00,  and consequently her services were terminated by the Respondent.

4.2.4  Mrs Thwala further stated that the Applicant was again re-engaged in March, 2007, and her salary was E650-00 per month.  She said that in April, 2007, the Applicant's salary was increased from E650-00 to E700-00 per month.

4.2.5  Mrs Thwala testified that on or about the 30th July, 2007,  the  Respondent got a  tender to  render

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catering services at the Dinner which was    held at Mavuso Trade Centre.  She said that she  had been informed by the organizers of the Dinner that the Dinner would be over at 10:00pm or thereabout.

4.2.6  It was Mrs Thwala's testimony that she promised her employees that they would be paid overtime for having worked at the said  Dinner on that night.  Mrs Thwala said that the overtime to be paid to the employee was not yet agreed upon; she stated that she was going to give them some money as a token of appreciation for the work done.

4.2.7  It  was  Mrs  Thwala  evidence  that  the  Dinner continued beyond 10:00pm.  She said that as a result, the Applicant and two (2) of her colleagues abandoned work and they went home before the Dinner was over.  Mrs Thwala stated that only the Chef and herself were left to do the catering.  She said that she was forced to fetch from home her daughter-in law to assist during the dinner (to serve the people with food).

4.2.8  RW1 (Mrs Thwala) testified that, on the following, she  summoned  all  the  employees  (Applicant included),  who deserted work at Mavuso Trade Centre to explain why they did that.  RW1 said that the other two (2) employees apologized to her  for  their  misconduct,  and  they  signed  a Written Warning.   She said that Nomphumelelo Simelane (Applicant) refused to apologize and she (Applicant) did not sign the Written Warning.  She said  that  the  Applicant  only  demanded  the payment of her salary (E700-00) for July, 2007; which was eventually paid to her.

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4.2.9  It was RWl's evidence that, following the incident at Mavuso Trade Centre, the Applicant resigned from the Respondent's employment.

4.2.10 RW1 (Mrs Thwala) disputed the Applicant's claim for  overtime.  RW1 stated that the Applicant was not entitled to any  overtime  pay  because,  she never worked overtime while  she  was   in   the Respondent's employ. She said that the Applicant was working the normal eight (8)  hours  a  day. RW1  testified  that  the  Applicant's  working schedule was to the effect that she started work from  8:45am  to  5:30pm   (knock  off  time) during the weekdays (Monday to Saturday).  On Sunday,   the  Applicant  started   work  from 8:30am to 4:00pm.   RW1  alleged that in the business she is operating (Restaurant), Sunday is a working day.
4.2.11  Mrs Thwala further testified that the Applicant was given 30 minutes for lunch, and 15 minutes for tea  break.   She  alleged  that  the  Respondent provided the Applicant with free meals for lunch and breakfast.

4.2.12 RW1 also testified that there was a time when the Applicant was sick (she had a miscarriage) and the Doctor at the RFM Hospital gave her two (2) days sick leave.    RW1 stated that she also gave the  Applicant  three  (3)  more  days  to  rest  at home.   She referred the arbitrator to Annexure "R2", being a copy of the sick sheet issued by RFM  Hospital  which  recommended  that  the Applicant should be off duty for two (2) days.

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4.2.13  Mrs Thwala further testified that the Applicant was given four (4) off days per month.  She explained that the  Applicant would normally knock off at 3:30pm on Friday and would report for duty on Monday at 8:30am  in the following  week.   In other words the Applicant would be at home on Saturday and Sunday in that particular week; and this occurred twice per month.

4.2.14 Mrs Thwala stated that the Applicant never at any stage during the currency of the reemployment with the Respondent, complained about the nonpayment of her overtime nor did she demanded any overtime.  Mrs Thwala said that the Applicant demanded  payment of overtime after she had left the Respondent's employment.

4.2.15 Mrs  Thwala  in  her  testimony  referred  the arbitrator to Annexure "R1", which is said to be the salary record.    Mrs Thwala explained that the  8  hours  which  appears  twice  under  the overtime   column,   in   Annexure   "R1"   was mistakenly entered under the overtime column. She said  that  this  does  not  mean  that  the Applicant worked overtime of eight (8)  hours  on each instance as it may appear therein, but the eight (8) hours should have reflected as the basic hours worked per day.  She stated that  the  total of  16  hours which  reflected  therein  under the overtime  column  were  wrongly  entered  or recorded.

4.2.16 On the other hand, Mr Thwala alleged that the Applicant breached the contract of employment between the parties in   that   she   (Applicant) unceremoniously left the Respondent's     employ without giving the Respondent sufficient notice.

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4.2.17 With regard to the sum of E250.00 which was deducted from the Applicant's salary; it was Mrs Thwala's testimony that the Applicant consented to   the   aforesaid   deduction   (following   the Applicant's shortage of E250.00).

Cross Examination

4.2.18 During  cross-examination  RW1  (Mrs  Thwala) confirmed that the workers had chosen a certain Mr   Mahlinza   (an   employee)   to   be   their representative at the workplace.

4.2.19 It  was   put  to   RW1   by   the  Applicant's representative that as  per his  instructions the workers did not have a representative and that the  said  Mr  Mahlinza  was  never  elected  or appointed   by  the  employees   to   be   their representative. In response RW1 maintained that Mr Mahlinza was chosen by the employees to be their representative at the workplace.

4.2.20 It was further put to RW1 that it was not true that the Applicant was initially engaged as a temporary employee. In response RW1 maintained that the Applicant  was  in  or  about  December  2006 engaged as a temporary employee.

4.2.21 It was put to RW1 that the Applicant was engaged in December 2006 and that she was from that date in continuous employment until the time of her dismissal. RW1 disputed this allegation.

4.2.22 RW1  was  also  asked  whether  she  had  the Applicant's written consent before she deducted the  sum  of  E250.00  from  the  Applicant's wages.RW1  answered  to  the  affirmative;  she

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(RW1) said that the Applicant consented as shown in Annexure "R1".

4.2.23  It was further put to RW1 that Annexure "R1" is not the  Applicant's  consent,  but  that  it  is  an acknowledgement of receipt of monthly wages by the Applicant. RW1 disputed this; she insisted that the Applicant consented to the deduction of the sum of E250.00 from her salary, to make up for the shortage of E250.00 caused by the Applicant in her takings.

4.2.24 The Applicant's representative put it to RW1 that the total of 16 hours (8hours X 2) which reflect on Annexure "RW1" under the overtime column in this document, is indeed an overtime owed to the Applicant by the Respondent.

4.2.25  RW1  vehemently  denied  this  allegation.  RW1 reiterated that the 8 hours which appears twice under the overtime column  in Annexure "RW1" was  not  overtime.  She  said  that  this  was erroneously   entered  or  recorded  under  the overtime column.  She said that the Applicant was working  the  normal  eight  (8)  hours  per  day (there was no overtime).
4.2.26 It was also put to RW1 that the Applicant never at any stage waived her right to claim overtime from the Respondent. It was said that the fact that the Applicant never demanded from the Respondent her overtime pay while she was still working for the  Respondent,  does  not  mean  that  she  is precluded from claiming it now. In response RW1 disputed this allegation.

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5. Analysis of Evidence and Submissions

5.1   My analysis  will  mainly focus  on  the  evidence which I deem relevant to my Award herein.

5.2   The issue which I am called upon to decide is overtime. However, the applicant in her prayers also seeks the payment of the sum of E250.00 which was allegedly deducted by the Respondent from the applicant's salary for January 2007.

5.3   Briefly, the Applicant in her closing submissions argues that she worked overtime. The Applicant further submits that the Respondent has failed to give evidence to dispute her allegations herein. The Applicant submits that the Respondent has an obligation  in  terms  of  Section  151  of  the Employment  Act  1980,  as  amended,  to  keep records  that  were  to  dispute  the  Applicant's allegations pertaining to the overtime claim.

5.4   With regard to the deducted sum of E250.00 from the Applicant's salary; the Applicant argues that it was  wrong  for the  Respondent to  deduct the aforesaid  sum  from  the  Applicant's  salary  for January 2007 without the Applicant's consent and that this was in contravention of Section 57 of the Employment Act 1980.

5.5   Regarding the Respondent's counter-claim;  it is the Applicant's argument that the Respondent is not entitled to the alleged counter-claim.   It is argued  that  the  Respondent  has  failed  to report  a  dispute  against  the  Applicant.  The Applicant prays that the Respondent's   counterclaim be dismissed.

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5.6   On the contrary, the Respondent in its closing submissions  contends  that  the  Applicant  never worked overtime; she worked for eight (8) hours per day like all the Respondent's employees. The Respondent denies that the Applicant worked all calendar days as alleged by the Applicant in that, she used to take two (2) days off duty, fortnightly. It is also submitted that the Applicant wrongly claimed overtime for days when she was not at work; for instance there was a time when she was on sick leave. It is submitted that the applicant also conceded during cross-examination that she was given a sick leave as per Annexure "R2", plus three (3) days authorized by the Respondent.

5.7   The Respondent also contends that Sunday is a normal working day. On Sunday it is alleged that employees resume their duties from 8:30 a.m to 4:00  p.m.  With regard to  Public Holidays, the Respondent submits that in the event employees (including the Applicant) had worked on a Public Holiday, they were paid or given off days.

5.8   The  Respondent  further  contends  that  it  has proved,  through  RW1's  evidence,  that  the Applicant did not work all calendar days as alleged by the Applicant. The Respondent submits that the Applicant was proved to be a liar.

5.9   It is submitted herein that the Applicant is not entitled to the claim of overtime, wherefore it is prayed  on  behalf of the  Respondent that the applicant's  Application   for  the   payment  of overtime be dismissed.

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5.10  May I state that each case depends on its own merits.   In   the   present   case   as   I   have mentioned above herein, the issue which falls for determination is overtime. Therefore, the issue of the  alleged  unlawful  deduction  of the  sum  of E250.00 by the Respondent from the Applicant's salary for January  2007 cannot  be considered, because it does not form part of the issues which were conciliated upon. The issue of the  unlawful deduction  of  the  sum  of  E250.00  does  not appear in the Certificate of Unresolved Dispute. According  to  the  Certificate  of  Unresolved Dispute in this case, which was issued on the 5th June 2008; in paragraph 2 thereof, the issue in dispute is overtime. The nature of dispute herein is  unfair  Labour  Practice,  according  to  the Certificate of  Unresolved   Dispute.  The Commissioner recorded  his reasons for the non-resolution of the dispute as   follows;   "The Applicant stated that she worked   overtime    at the   respondent's   undertaking   but  was   not remunerated  for  same,  which  allegation  was denied  by  the  Respondent.  The  dispute  is  therefore certified Unresolved. " In this regard see, the  case  of  Swaziland  Development  and  | Savings  Bank  v  SUFIAW  (Industrial  Court   ; \  case No.418/2005).    
                      
5.11  There  is  nowhere  in  the  said  Certificate  of Unresolved  Dispute, where the alleged  unlawful deduction of E250.00 is mentioned. Even in her Report  of  Dispute,  in  particular  paragraph  5.1 thereof, where the applicant was expected to state the nature of the dispute;  unpaid overtime was stated as the nature of the dispute. In paragraph 5.3 of the same  Report of Dispute,  where the Applicant was supposed to summarize all the facts giving rise to the dispute; she has not mentioned

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the issue of the deducted sum of E250.00 from her salary by the Respondent. Even in her letter of demand dated 10th October 2007, she only claims for unpaid overtime, the sum of E250.00 is not claimed. In light of the foregoing, the applicant's claim for the payment of the deducted sum of E250.00 is rejected.

5.12  On the other hand, the respondent's counter-claim cannot be considered; I cannot take cognizance of this  counter-claim because  it  has  never -beer) conciliated upon. In this regard, see the case of,

 Hub Supermarket v Andrew  McCarter (ICA Case  No.18/2005).  On  the  other  hand,  the 
Respondent  has  failed  to  disclose  the  amount being claimed in its counter-claim.

5.13  With regard to the issue of the alleged unpaid overtime; I am called upon to decide whether the applicant  is  entitled  to  the  overtime  claimed herein. The Applicant's claim for unpaid overtime is three-fold namely; overtime for the period from December 2006 to September 2007; overtime for working on Sundays and as well as overtime for working  during  Public  Holidays.  In  respect  of overtime for the period from December 2006 to September 2007; the Applicant claims a sum of E3271.15.  The  said  sum,  according  to  the Applicant's calculation,  is  made  up  as follows; Eleven (11) hours per day x 6 days= 66 hours; 66 hours - 48 hours (normal working week) = 18 hours;  18 hours x 4 weeks x 9 months = 648 hours. 648 hours is then multiplied by the hereby rate x 1.5 = overtime pay (aforementioned).

5.14  In support of this claim, the Applicant testified that  she  started  work  at  7:00a.m  and  she knocked  off at 6:00p.m  six  (6)  days  a  week

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namely, from Monday to Saturday. According to the Applicant's version she worked a total of eleven (11) hours per day; which means that she worked 3 hours in excess of the statutory prescribed eight (8) hours per day.

5.15  However, during cross-examination the Applicant admitted that there were days on which she was not at work,  and thus she conceded that her computation  of  the  overtime  claim  was  not accurate.  For  instance,  there  is  undisputed evidence that the Applicant was once given two (2) days sick leave. There is also evidence by RW1 that the Applicant was given three (3) days extra following her miscarriage, which evidence was not disputed   by   the   Applicant.   During   cross-examination the Applicant testified that she was given  two  (2)  days  offdays  per  month;  but surprisingly the Applicant claimed to have worked overtime  even  during  off days  because  in  her evidence in chief she claimed to have worked all calendar days since December 2006 to September 2007.

5.16  The Respondent in the form of RWl's testimony disputed  the  Applicant's  allegations  that  she worked overtime totaling 648 hours for the period from  December  2006  to  September  2007.  In particular  the  Respondent  denied  that  the Applicant used  to start work from  7:00p.m to 6:00p.m from Monday to Saturday. According to RWl's testimony, the Applicant's working  hours were to the effect that she started  work from 8:45a.m  to  5:30p.m  during  the  six  (6)  days (Monday  to  Saturday);  while  on  Sundays  she started work from 8:30a.m to 4:00p.m. Again, this  evidence  was  never  challenged  by  the Applicant and as such it remains uncontroverted.

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5.17  With regard to the Applicant's overtime claim for the period from December 2006 to September 2007, I am unable to accept her testimony that she worked overtime totaling 648 hours as she alleged herein.

5.18  May I turn to the Applicant's  claim  for  overtime worked   on Sundays.  In support of this claim, the  applicant testified  during  her  evidence  in chief that  she  worked  even  on  Sundays.  She alleged   that on  Sundays she started work at 8:00a.m and  knocked off at 4:00p.m. However, the  Respondent  through  Mrs  Thwala's  (RW1) evidence, disputed  working hours or schedule Mrs Thwala (RW1) on   the contrary testified that on Sundays the Applicant used to  begin work at 8:30a.m and knocked off at 5:30p.m. Again the Respondent's  evidence in this regard was never disputed or challenged by the Applicant through her  representative   during   cross-examination. Since the Respondent's testimony regarding  the issue  of  the  Sunday's  working  schedule  is uncontroverted,  I  am  inclined  to  accept  it  as probably true.

5.19  On the other hand, the Respondent alleges that in its business Sunday is a working day.   I do not agree with the Respondent's argument as it is not promised on any legal  basis.   Sunday is not _a  normal  working  day  and  as  such  an "overtime is payable at double or two time the Applicant daily rate. According to the Regulation of Wages (Hotel,  Accommodation,  Catering and Fast Food Trades) order 2008, the normal hours of work shall consist of forty-eight hours (which shall exclude six hours duty free for meal breaks) spread over a period of six days.  It is

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not in dispute that the Applicant used to work on Sundays. According to RW1's evidence the Applicant used to work two (2) Sundays per month.

5.20 Lastly, let me look at the issue of overtime for working during Public Holidays. It is the Applicant's case that she worked seven (7) Public Holidays. The Respondent has not denied that the Applicant worked even on Public Holidays and that she worked for seven (7) Public Holidays. As this evidence is not in dispute, I am inclined to accept it as probably true.

6. Conclusion

6.1 In the light of the forgoing analysis of evidence herein; it is my conclusion that the Applicant's claim for overtime allegedly worked during the period from December 2006 to September 2007 should fail. On the balance of probabilities, the Applicant has failed to make out a clear case against the Respondent to the effect that she worked overtime during the period in question. On the other hand, the Respondent has been able to rebut the Applicant's evidence. As I stated above, the Applicant through her representative has failed to dispute Mrs. Thwala's evidence, to the effect that she never worked overtime during this period and or at any given time. RWI (Mrs. Thwala) disputed the Applicant's alleged working hours (7.00am to 6.00pm). Mrs. Thwala testified that the Applicant worked for the normal eight (8) hours per day. She said that the Applicant began work from 8.45am to 5.30pm. This evidence was never disputed or denied by the Applicant, and as such it is acceptable as it remains uncontroverted
.
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6.2   However, I find that the applicant is entitled to be paid overtime for working during the dinner which was held at Mavuso Trade Centre on the 30th July 2007.  From the evidence led herein, it is not in dispute  that  the  Applicant  was  one  of  the Respondent's employees who worked on the day in question.  According to Mrs. Thwala's evidence, the applicant (Nomphumelelo Simelane) worked overtime on that day. Mrs. Thwala testified that at about 10.00pm, the Applicant and two (2) other employees abandoned work and went home, due to the fact that the dinner which was expected to be  over  by  10.00pm  was  still  ongoing.  Mrs. Thwala testified that she had promised to give the employees (Applicant included) some money for having worked on that night. It is common cause that the Respondent did  not pay the Applicant overtime. The Respondent has not denied the fact that the applicant's overtime was not paid.

6.3   It is  my considered  view that the Applicant is entitled to be paid overtime which is equivalent to four and a half hours (4.5 hours). The Applicant worked overtime from 5:30p.m to 10:00p.m on the 30th July 2007; and this is based on the fact that she  left  Mavuso  Trade  Centre  at  about 10:00p.m.    The amount to be paid is calculated as follows; 4.5 hours x E3.37 (hourly rate) x 1.5 = E22.75.

6.4   Regarding the Applicant's claim for working on Sundays; it is my conclusion that the Applicant is entitled  to  be  paid  overtime  for  working  on Sundays.  However,  I  do  not  agree  with  the Applicant's computation of this claim, which is as follows: 3 Sundays per month x 9 months = 27

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Sundays; 27 Sundays x 8 hours (per Sunday) = 216 ; E700/26/8 hours x 2 x 216 hours = E1, 453.84. In her calculation of this claim, the Applicant inter alia, based it on the allegation that she worked three (3) Sundays per month. The Applicant's allegation that she worked three (3) Sundays a month was disputed by the Respondent through RW1's testimony, which is to the effect that the Applicant worked 2 Sundays per month. This evidence as I stated above herein remains uncontroverted, hence my acceptance of same.

6.5   According to my findings, the Applicant should be paid overtime for 18 Sundays worked, which is calculated as follows: 2 Sundays per month x 9 months = 18 Sundays; E700/26 = E26-92 (daily rate) x 2 (double rate) x 18 Sundays = E969-12.

6.6   It is my further conclusion that the Applicant is entitled to be paid overtime for working during seven (7) public Holidays. The amount to be paid to the Applicant is a sum of E376.92.
6.7   Overall,  it is  my finding  that the Applicant is entitled to be paid by the Respondent a total sum of El 368.79, being in respect of unpaid overtime.

7. Award

7.1 Pursuant to my foregoing conclusion and findings herein; and having taken into account the circumstances of the case; I hereby make the following Award;

(I)	That the Respondent should pay the Applicant her overtime in the sum of El, 368-79.

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(II)	(ii) The Respondent is ordered to pay the Applicant the sum of El, 368.79 (One Thousand, Three Hundred and Sixty Eight Emalangeni; Seventy Nine Cents) within seven (7) days from date of receipt of this award.

DATED AT MANZINI ON THIS 24th .DAY OF JULY, 2009.

ROBERT S. MHLANGA (CMAC ARBITRATOR)

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