Kuwait Court of Cassation principle number 379

Summary: - Employing a worker for overtime hours and on weekly rest days and official holidays. A permission conferred by the legislature upon the employer. Its condition: the employer’s obligation to pay special remuneration, in addition to complying with the conditions set out in Articles 21, 64, 66 and 68 of Law No. 6 of 2010 concerning Labour in the Private Sector. - A worker’s entitlement to remuneration for overtime hours. Its criterion. That the worker actually worked for a period exceeding the legally prescribed maximum working hours, upon assignment by the employer. The worker may prove this by all legally admissible means of proof. The challenged judgment’s departure from this, relying on the absence from the papers of written evidence that the employer assigned overtime work to the worker and its failure to accept the statements of both parties’ witnesses. This renders it defective and requires its partial cassation. Rule: The provision in Article 64 of Law No. 6 of 2010—concerning Labour in the Private Sector—that “Without prejudice to the provisions of Article 21 of this Law, a worker may not be employed for more than forty-eight hours per week or eight hours per day, except in the cases provided for in this Law ...”; the provision in Article 66 thereof that “Without prejudice to the provisions of Articles 21 and 64 of this Law, a worker may, by written order of the employer, be employed for an additional period if this is necessary to prevent a serious accident, repair its consequences, avert a certain loss, or meet work exceeding the daily amount. Overtime hours may not exceed two hours per day, with a maximum of one hundred and eighty hours annually. Nor may overtime periods exceed three days per week and ninety days per year. This shall not preclude the worker’s right to prove the employer’s assignment to him of work for an additional period by all legally admissible means of proof, or the worker’s right to receive remuneration for the overtime period ......”; and the provision in Article 68 of the same Law that “The official holidays prescribed for the worker with full pay are: a- .......... b- ............. c- ............ d- ........... e-........... f- ............. g- .............. h- .............. i- If work circumstances require employing the worker on one of these days, he shall be entitled to double pay for it, together with compensation by an alternative day,” mean that the legislature conferred upon the employer permission to employ the worker for overtime hours and on weekly rest days and official holidays in the cases and under the conditions set out in those Articles, in return for the obligation to pay special remuneration. The criterion for the worker’s entitlement to remuneration for overtime hours is that he actually worked for a period exceeding the legally prescribed maximum working hours upon assignment by the employer. The worker is entitled to prove the employer’s assignment to him of overtime work by all legally admissible means of proof. That being so, the challenged judgment based its decision rejecting the appellant’s claim for the remuneration due for overtime hours and Fridays on the ground that the papers contained no evidence of a written assignment by the respondent—the employer—to him to undertake overtime work, and on its lack of confidence in the statements of the appellant’s two witnesses in this regard, because their testimony that he continued to work four overtime hours daily throughout his service without interruption was not rationally consistent, and that the restaurant manager, the appellant, testified that he worked overtime throughout his service without claiming remuneration for it, and that this also applied to Fridays. What the judgment stated and relied upon to infer that the appellant was not entitled to remuneration for overtime work and work during these days, besides contravening the correct application of the law, since the worker may prove the employer’s assignment to him of overtime work—as previously explained—by all means of proof, which was attested to by the statements of his two witnesses and the statements of the respondent’s two witnesses, is tainted by unsound inference. Moreover, the appellant’s silence in not claiming remuneration for overtime hours and work on Fridays throughout his service does not constitute evidence that he did not perform that work. The statement of the appellant’s two witnesses that he worked overtime hours and on Fridays without interruption throughout his service is not rationally impossible. Accordingly, the challenged judgment is defective, requiring its partial cassation insofar as it rejected the claim for remuneration for overtime work and work on Fridays.