A NIGHT PORTER'S HOURS

Taranaki Daily News, Volume LIV, Issue 27, 26 July 1911, Page 7

A NIGHT PORTER'S HOURS

i —c—- [ CLAIM FOR OVERTIME FALS. _ Mr. H. S. Fitzhcrbert, S.M., gave judgment yesterday in the ease in which Leonard Agis, formerly night porter at the Imperial Hotel, sued Walter Little, the licensee, for £5 10s 3d for overtime worked at the rate of ninepence per hour. The case was heard last Tuesday, and legal argument on Friday, Mr. Hutchen appearing for the plaintiff, and Mr. Johnstone for the defendant.

In giving his decision, Mr. Fitzherhert said the plaintiff had asked the court to believe that he had entered into a very extraordinary contract with the defendant. According to him, lie was to start work at 9.45 each night and knock off when he had finished his work. How any employee could enter into contract like that he was unable to conceive. J An expert porter, he pointed out, might j do the work required in two or three hours and then leave off; whilst a lazy or incompetent man might prolong the work until two or three o'clock in the afternoon, and then claim payment for overtime. The magistrate ootid not believe that such a contract had been entered into in this case. The plaintiff, be continued, had produced a diary in which he had entered the number of hours he claimed to have worked. He noted that the time of starting work never varied, )>ut there was a variation in the hour of knocking off. But any man could get a book and.make up a diary. These were practically the only entries in the book, and they were all written at the same angle., with the same pencil (a ratter peculiar one), for two months. The paper was nice and crisp, without a "dog's ear" in it, and the entries bore every appearance of having been written up at one time. A book like that wa» of no value in evidence. In his opinion, the entries were not genuine, but had been writtien up since. There was another thing that showed that the contract alleged had never been made was i that every fortnight the plaintiff had taken his'wages as per agreement, without saying a word about overtime. Ten o'clock at night was a reasonabe hour for n night porter to start work, and defendant had said the hours of work were to be from 10 p.m. to !) a.m.. the porter being allowed two hours off for meals and rest. The Shops and Offices Act provided that the emplovee should have at least half an hour off in every five hours, so the plaintiff would be prevented from working for at lea*t one hour. Little's version of the contract was a reasonable one, and could he accepted as the one probably entered into. HiVWorimlp held that the contract entered into was for a nine hours' day, giving a 03.hours' week, whilst the Shops and Offices Act iprovided for 02 hours. It was no breach of the Act if it had been arranged that plaintiff shoud work this extra hour a week, for it was only stipulated that overtime so worked should' not exceed three hours in one week or f# days in a year. He did not consider there had been a breach of the Act. Even if there had been this would not have entitled plaintiff to sue. although it might have enabled the inspector to have the person guilty of the breach punished. As to the extra hour a week, if it wasMvorked—and this Little did not deny—could the plaintiff recover? His Worsiip did not think so, bcanse a condition precedent to that was that notice should have been given within a, prescribed time to the inspector. The Act did not say who was to give this notice, but presumably the employee. As no notice had been given the plaintiff was precluded from claiming for the overtime. Having decided on these facts, it waft unnecessary for him to go into the question of waiver raised by counsel. Plaintiff would be non-suited, with costs a guinea. Mr. Ilu'teheii asked for leave to appeal, and His Worship replied that lie thought the matter too trilling for that.

Mr. Hutclien said it was a question of importance to n large nnml>cr of people, .but the S.M. thought that tho, hearing should end the litigation in a matter erf this kind, involving only a few shilling's. There was no reason to involve, people in an expense of £2O or £25 .about ■ such a matter. In fact, a case of this kind 7iiight well have been settled under tile equity and good conscience clause of the Act. He refused to allow leave to appeal.