CLAIM FOR OVERTIME

Taranaki Daily News, Volume LIV, Issue 21, 19 July 1911, Page 2

CLAIM FOR OVERTIME

A FINE LEGAL POINT. A claim for overtime occupied the attention of Mr. H. S. Fitzherbert, S.M., at the Magistrate's Court yesterday, when Leonard Agis, until recently night porter at th,e Imperial Hotel, sued the licensee, Mr. Walter Little, for £8 Os 3d. The claim was made up as follows: Week's wages, £1 ss; wages in lieu of holiday, £1 ss; and 155 hours' overtime, at 9d per hour, £5 16s 3d. The two former amounts wero paid into Court and the overtime was disputed. Mr. Hutchen appeared for the plaintiff and Mr. Johnstone for defendant.

Mr. Hutchen, ,in opening his case, pointed out that under the Shops and Offices Amendment Act, 1910. the definition of shop assistants was extended to include hotels and restaurants, and the week was fixed for (12 hours. Any overtime was to be paid at the rate of time and a-half, or !)d per hour, whichever was the greater. All the witnesses were ordered out of Court,

Leonard Agis deposed that he was employed by Mr. Little as night porter at the Imperial Hotel from May 4 to July 4 of this, year. He kept a timesheet (produced), which he entered every moj-ning his working hours, and this showed that he had worked 155 hours' overtime. He was not paid for any of this overtime. His wages were 25s per week and found.

To Mr. Johnstone: He was paid fortnightly. There was no trouble about the payment of the wages until the last week, when Mr. Little complained that he was about too much in the daytime. Witness replied that there was too'much work to do and gave a .week's notice. At the end of that week ho was tendered his week's wages and 25s in lieu of a week's holiday. He had deducted nothing from his overtime for meals or holiday time. His duties commenced at 9.45 p.m. and continued until the work was done. He enumerated his duties at length. He did not claim' overtime when paid his first fortnight's wages.

Re-examined by Mr. TTutclien: He had his dinner before he commenced work and his breakfast after he finished.

Wm. Rhodes, cook at the Imperial Hotel, gave evidence tlmt plaintiff usually breakfasted at about !) a.m., after he had finished work. Mr. Johnstone asked for a non-suit, on the ground that plaintiff, by liis conduct, had waived any claim lie may have had. The proper time to have asscrteer Iil» claim was when he received his first fortnight's wages, but, instead, lu> had accepted that and five subsequent payments without demur. It was unfair that a claim should be allowed to pile up like this so that at the end of three months, after some friction had arisen with his employer, a man should hand in a claim for 15,5 hours' overtime, spread over the whole period. If this were allowed an employer would never know his position.

Mr. Hutchen argued that the question of waiver did not affect a common law action.

His Worship said that the point raised was a fine one. and he would like to consult authorities. He would reserve his decision on the question of waiver. Walter Little. licensee of the Imperial Hotel, gave evidence that defendant was engaged on May 3 as night porter. Defendant was supposed to work nine hours, and get his meals during the other two hours. Plaintiff never made any claim for overtime nor complained of the work until witness complained about him being about too much during the day.

Mr. Johnstone was proceeding to examine defendant as to whether plaintiff was actually working during the time and as to what time was allowed for meals.

His Worship said he was quite satisfied as to the merits of the case. The question to be considered was whether the plaintiff's action constituted a waiver at law, and the case was adjourned, until Friday to enable that point to he argued.