CLAIM FOR OVERTIME.

Stratford Evening Post, Volume XXIX, Issue 125, 19 July 1911, Page 5

CLAIM FOR OVERTIME.

A FINE LEGAL POINT. ’ A claim for overtime occupied the attention of Mr H. S. Fitzhorbert, S.M., at the New Plymouth Magistrate’s Court yesterday, when Leonard Agis, until recently night porter at the Imperial Hotel, sued the licensee, Mr Walter Little, for £8 6s 3d. The claim was made up as follows:—Week’s wages, £1 ss; wages in lieu of holiday, £1 os; and 165 hours’ overtime, at 9d per hour, £5 16s 3d. The two former amounts were paid into Court and the overtime was disputed.

Mr Hutchcn appeared for'the plaintiff and Mr Johnstone for defendant. Mr Hutchcn, 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 62 hours. Any overtime was to be paid at the rate of time and a-half, or 9d 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 Ito July 4of this year. Ho kept a timesheet (produced), which he entered every morning his working hours, and this showed that ho had worked 165 hours’ overtime. Ho 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. Ho had deducted nothing from his overtime for meals or holiday time. His duties commenced at 9.40 p.m. and contnued until the work was done. Ho enumerated his duties at length. He did not claim overtime when paid his first fortnight’s' wages. Re-examined by Mr Hutchen: He had his dinner before ho commenced work and his breakfast after he finished.

Win. Rhodes, cook at the Imperial Hotel, gave evidence that plaintiff usually breakfasted at about 9 a.m., after he had finished work. Mr Johnstone asked for a non-suit, on the ground that plaintiff, by his conduct, had waived any claim he may Aave had. .The proper time to have asserted his claim was when ho received his first fortnight’s wages, but, instead, he had accepted that and five subsequent payments without demur. It was unfair that a claim should lie allowed to pile up like this so that at the end of throe months, after some friction had arisen with his employer, a man should hand in a claim for 100 hours’ overtime, spread over the whole period. If this ware 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 lino one, and ho woidd like to consult authorities. .He would reserve his decision on the question of waiver. Walter Little, licensee of the Imperial Hotel, gave evidence ;hat defendant was engaged on May 3ui as night porter. Defendant was supposed to work nine hours, and got i as meals during the other two hours. Plaintiff ncror made any •.■hum lar overtime nor complained of the woik until witness complained about him being about too much during the day.

Mr Johnstone was proceeding to examine defendant as t) whether plaintiff was actually worning during the time and as to what time was allowed for in oak'.

His Worship said ho was quitesatisfied as t.r; the merits -u the case. The question to lie eon u hired was whether the plaintiff’s actio i constituted a waiver at law, and the case was adjourned until Friday to eicduo tliat point to be argued.