Most employers ensure that they get their monies worth from their employees; and they believe the use of a Clocking Policy is the magic wand. The question that arises is whether: An employer can legally use a Clock Sheet Policy as means of determining a salaried employee’s salary at the end of the month.
A salaried employee is used in this paper to refer to an employee whom at the inception of the contract her salary was determined and agreed. The changing economic circumstances of the day and also the recession no one really wants any money going out without any favourable and or satisfactory return. To meet this there is a practice by employers of imposing a clock sheet policy on employees. A Clocking Policy is a policy in terms of which every employee is required to clock in when he arrives at work, and clock out when he departs from work. The clocking times would be reflected on the employees’ clock cards. Typical clocking policies involve the use of a clock book usually found at the main gate or reception or finger print clocking system.
The employers implement this policy by making salaried employees to clock in when they arrive at work, clock out when they go to the toilet, when they go out to have a cigarette or when they go outside to answer a personal phone call, they will then clock in again after attending to those personal activities. The employer will then use the results of the clock sheet as a basis of the employee’s salary for that month. If the clock sheet reflects that the employee has worked less than an average of 195 hours for that month her salary will be deducted. This presupposes that the employer says the salary agreed upon was based on the understanding that the employee will work an average of 195 hours and when the hours fail to match the average of 195 hours the agreed salary will be deducted.
There is an inherent inequality in the relationship between employer and employee such that if left unregulated the employer would be the Hitler of the day. The relationship between employer and employee is contractual in nature where the employee puts her service or labour potential at the disposal of the employer in exchange for determined or determinable remuneration. This terms cannot be unilaterally altered. It follows therefore that the employment contract is reciprocal in that the employee is remunerated by the employer for services provided or putting her labour potential at the disposal of the employer. It is perhaps prudent to clarify that for an employee to be remunerated she does not necessarily have to do the actual work that he was employed for, the employee has to put her services at the disposal of the employer. If there is no work to be done the employee is still entitled to be remunerated for arriving at the work place on the agreed time. If there is no work to be done the employee is still entitled to her remuneration.
In as much as the relationship is contractual, the contract must comply with the Labour Laws such as the Labour Code Order 1992. Section 118(1) of the Labour Code stipulates that the normal hours of work for any employee shall not be more than 45 hours a week, it is calculated in two ways;
- 9hrs a day for 5 days and
- 8 hrs a day for 5days and 5 hrs for 1 day.
In a month a full time employee is expected to work an average of 195 hours. Section 118 (2) provides that an employee must take an hour break after working 5 hrs, a break of less than an hour is not a break.
If the employee does not work during the working hours or does not make her services available, some employers resort to the clocking policy so as to apply the principle of “No Work, No Pay”. The principle was birthed by the very fact that rendering of service is a prerequisite of the employee’s right to claim payment of her salary. In terms of common law an employee who does not tender services or put her labour potential at the disposal of the employee, except in cases of paid authorised absence, is not entitled to receive her salary. A clocking policy is a policy in terms of which every employee is required to clock in when he arrives at work, and clock out when he departs from work. The clocking times would be reflected on the employees’ clock cards.
Does the principle of “No work, No Pay” mean that an employee’s salary can be deducted for attending to the toilet, answering personal calls outside the office? If so under what circumstances can this be the case?. Section 85 (4) of the Labour Code Order, 1992 entitles an employer to make deductions from the wages of an employee for, amongst others, periods of unauthorized absence. Such deductions, the section stipulates, must be proportionate to the periods of unauthorized absence. Even in this instance the law requires that the employer shall not deduct more than the loss he suffered in consequence of the employee’s absence as well as the cost to the employer for getting a replacement for the absent employee.
From the above section one can gather that an employer can legally deduct an employee’s salary. But it also makes one wonder what is it that amounts to unauthorized absence against the background of this note, secondly it seems before the deduction is made the employer has to establish that he suffered loss because of the employee’s absence. Case law in Lesotho does not interpret unauthorized absence, probably because an available case on this matter did not have to as it was obvious. In Nthona Kometsi v C & Y Garments LC/REV/62/12 the employee did not come to work at all, so she was indeed absent and the court held that the deductions to her wages for the day she absented herself without authorization were in no way a penalty or sanction for absenteeism but were for failure to render services on the particular day. They were by operation of the law and not as result of a disciplinary hearing. Section 85 (4) of the Labour Code Order, 1992 entitles an employer to make deductions from the wages of an employee for periods of unauthorized absence.
Seeing that Lesotho legislation and case law do not define unauthorized absence, resort will be heard to common law. In Meerholz v Norman – case 1916 TPD 332 the conclusion was ” Where an employer chooses to appoint certain definite hours for work and the employee accepts that contract, then the employer is entitled to require that those hours be adhered to. It is not a requirement that the employer has to show that those hours are necessary for the running of the business. Where the employee fails repeatedly to keep those hours, the employer is entitled to dismiss him.” Because of decision in such afore stated case, some authors have said that unauthorised absence is not limited to not coming to work the whole day, it includes arriving late, living early, extended tea or lunch breaks, extended toilet breaks, uncontrolled smoke breaks; in all these instances the employee is not at the work station and therefore absent.
Employer and employee relationship is regulated by law and principles of reasonableness. The courts have held that the employer is at liberty to set standards of conduct at the workplace but the courts will interfere if such standards shock a reasonable person’s sense of fairness. As much as the employer can say “I am only paying you when you are actually doing my job or putting your services at my disposal”. Principles of fairness curtail the powers of the employer because it is unreasonable to expect the employee to be seated in one position for five straight hours, allowing short breaks promote the efficiency of the employee. Section 85 (4) of the code indicates that there must be loss occasioned by the employee’s absence to warrant a deduction. This furtherbuttresses the point that there must be fairness, so the employer must prove his loss. Proving this will be more difficult in some industries than others.
By way of conclusion we have established that indeed the clock sheet policy can be used, but it cannot be used to determine the salary of an employee whose salary was determined at the inception of the contract. It can however determine a salary of an employee whom it was agreed that she will be paid per hour. For instance this is typical in the agriculture industries where it may be agreed that for an hour an employee can harvest 2 bags of maize, so here loss is easily determinable. Secondly deducting a salary based on small breaks under the umbrella of “no work no pay” needs the employer to use utmost reasonableness because in the context of Lesotho he must prove loss occasioned by the unauthorized absence. Lastly we advise that it is better to have a “short break policy” which will allow the employer to discipline employees for extended breaks because using a “no work no pay” principle for extended long breaks may be unreasonable and thus unfair. We all need to visit the toilet, some need to smoke, ladies may take longer periods in the toilets on certain times but at the end of it all we all need short breaks to ensure that we properly function.
The article appeared in the local newspaper (The Post) on may 3 2018. Click Here to see it.
Prepared by the department of Labour, Industrial Relations and Property Management at Sello-Mafatle Attorneys. For more information contact us on 22317748 or emails us [email protected]/[email protected]