Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
LABOUR
COURT
JUDGMENTS
A compilation
LESOTHO LABOUR
COURT JUDGMENTS
A COMPILATION
2015 JUDGMENTS
Volume 4
Before
His Worship, Advocate Thato Charles Ramoseme
Lecturer
Book author
Judge of the Labour Court of Lesotho
ii
Works
Published Books
(2012) The Impact of Closed Shop Agreements: A Critical and Comparative
Analysis of South Africa and Germany Lambert Academic Publishing:
Germany.
(2012) The Rights of the Minority Against Majority Rule: A Critical Analysis of
South African Companies Act 71 of 2008 Lambert Academic Publishing:
Germany.
Arbitration Law in Lesotho in Bosman L (2013) Arbitration in Africa: A
Practitioners Guide Alphen aan den Rijn, The Netherlands: Kluwer Law
International.
Published Articles
Maternity Protection under the Labour Code Wages Order: A Source for
Discrimination (2011) Vol. 28, No. 1, Transformation Resource Centre Work
for Justice Journal.
The Effect of Dismissal for Misconduct on the Right to Severance Payment
(2012) Vol. 12, Issue 2, DDPR Information Bulletin.
The Right of the Employer to Dismiss an Employee for Contravention of
Unwritten Rules of Standards (2012) Vol. 12, Issue 3, DDPR Information
Bulletin.
The Exclusion of the Right to a Fair Hearing in Dismissal for Misconduct
(2012) Vol. 12, Issue 4, DDPR Information Bulletin.
The Right of the Employer to Refuse Reinstatement: The Need for a
Corresponding Right for the Employer. (2012) Vol. 12, Issue 5, DDPR
Information Bulletin.
The Protection of Probationary Employees Against Dismissal for Incapacity
(2012) Vol. 12, Issue 6, DDPR Information Bulletin.
iii
PREFACE
Labour Law is a specialised field within our jurisdiction, as is the case in
many other jurisdictions. There are specified forum and courts of law that
have been specifically established to interpret and apply labour laws. This
compilation is intended to guide labour law practitioners towards the correct
application of the labour laws of Lesotho.
This volume is a fourth sequence to the Lesotho Labour Court Judgment
Series. The first volume, on the one hand, contains judgments from early in
the last quarter of 2012 to December of that year. The second volume, on the
other hand, contains judgments issued in the year 2013, while the third
volume contains issued in the year 2014, which are 52 in number. This
volume contains judgments issued in the year 2015, from January to
October 2015, which are 54 in number.
This is just a compilation of the judgments in the form in which they were
issued. No modification has been made to suit this purpose both in terms of
content and styling. The only modification has been in so far as the font and
pagination are concerned. Even then the modification has been done for
purposes of standardising the document.
Emphasis is made that some of the recorded judgments herein, may have
been appealed against, some successfully and others otherwise. As a result,
it is the responsibility of the practitioner to make sure, before relying on any
of the judgments contained herein, to verify that they have not been
reversed.
T. C. Ramoseme
Maseru
October 2015
iv
TABLE OF CONTENTS
PARTICULARS
About the Author
Preface
Table of Contents
List of authorities
Cases
Legislation
Books and Journals
PAGE NUMBER
iii
iv
v - ix
x - xiii
xiv
xiv
1-8
9 - 14
15 - 18
19 - 22
23 - 27
28 - 32
33 - 36
37 - 41
42 - 44
45 - 49
vi
50 - 54
55 - 58
59 - 62
63 - 68
69 - 71
72 - 75
76 - 80
81 - 83
84 - 87
88 - 91
92 - 96
97 - 101
102 - 107
108 - 112
vii
113 - 115
116 - 121
122 - 124
125 - 126
127 - 132
133 - 135
136 - 142
143 - 146
147 - 155
156 - 164
165 - 176
177 - 185
186 - 190
191 - 196
viii
197 - 202
203 - 206
207 - 210
211 - 216
217 - 221
222 - 225
226 - 229
230 - 237
238 - 245
246 - 252
253 - 258
259 - 265
ix
266 - 269
270 - 273
274 - 280
281 - 283
LIST OF AUTHORITIES
Cases
National
Mokone v Attorney General & others CIV/APN/232/2008
Lewis Stores (Pty) Ltd v Makhabane and Others LC/REV/387/2006
J.D. Trading (Pty) Ltd t/a Supreme Furnishers v M. Monoko & others
LAC/REV/39/2004
Theko v Commissioner of Police and Another 1991-1992 LLR-LB 239
Central Bank of Lesotho v DDPR & Others LC/REV/216/2006
Puleng Mathibeli v Sun International 1999-2000 LLR-LB 374 (CA)
Maleshoane Bohloa and Others v Jet Store Maseru (Pty) Ltd & Others
LC/REV/48/04
Thabo Phoso v Metropolitan Lesotho LAC/CIV/A/10/2008
Mokone v G4S Cash Solutions (Pty) Ltd LC/31/2012
Thabo Makhalane v The Ministry of Law and Constitutional Affairs & others
LC/PS/A/02/2012
Thabo Moleko v Jikelele Services LC/40/2013
Kopano Textiles v DDPR & another LC/REV/101/2007
Sefatsa Mokone v G4S Cash Solution (Pty Ltd LC/31/2012)
Molaoli v Lesotho Highlands Development Authority LAC/A/06/2005
Mantsane Mohlobo & Others v Lesotho Highlands Development Authority
(LAC/CIV/A/02/2010)
Lepolesa & others v Sun International of Lesotho (Pty) Ltd t/a Maseru Sun and
Lesotho Sun (Pty) Ltd [2011] LSLAC 4
Tsakatsi v Lesotho Electricity Company (Pty) Ltd LC/REV/36/2008
Motebang Ramahloko v Commissioner of Police & another C of A (CIV)
11/2008
Maliehe & Others v Rex 1995-1999 LAC 258 at 263
Pascalis Molapi v Metcash Ltd Maseru LAC/CIV/REV/09/2003
Ministry of Public Service & Another v Masefabatho Lebona C of A (CIV)
06/2012
Napo Thamae & another v Agnes Mokone & another C of A (CIV) 16/2005
Potlako Thabane & another v Workmens Compensation Trust Fund Committee
& two others LC/08/2009
Matsemela v Nalidi Holdings (Pty) Ltd t/a Nalidi Service Station
LAC/CIV/A/02/2007
Security Lesotho v Lebohang Moepa
Security Lesotho v Khauhelo Moeno
Ntseke Molapo v Mphuthing & Others 1995-1996 LLR-LB 576
Moshoeshoe v Seisa & others CIV/T/596/2004
Jerome Ramoriting & Another vs Lesotho Bank-National Development Bank
(CIV/APN/136/87
Thabiso Moletsane v Ministry of Public works and Transport LC/31/2014
Lesotho Precious Garments v DDPR & Others LC/REV/24/2012
Leteng Diamonds (Pty) Ltd v DDPR & Others LAC/REV/111/2015
Standard Lesotho Bank v Raphael Mphezulu LC/REV/87/2011
National Executive committee of the Basotholand Congress Party .v. Maholela
Mandoro CIV/APN/69/2004
xi
Lehloenya
&
Others
v
Lesotho
telecommunications
corporation
LAC(CIV)4/2003
Lesotho Brewing Company v Labour Court President CIV/APN/435/95
Limkokwing University of Creative Technology (Pty) Ltd v Malisema Makoa &
Others LC/REV/109/2012
Khoai Matete v Institute of Development Management LC/46/2000
Thabo Mpakanyane v Ministry of Communications, Science and Technology
and the Attorney General LC/PS/A/01/2010
Thabo Teba & 31 Others v Lesotho Highlands Development Authority
LAC/CIV/A/06/09
Kule and Others v Lesotho Highlands Development Authority and another
LC/REV/77/2008
Thabo Mohlobo and 13 others v Lesotho Highlands Development Authority and
Another LC/REV/42/2009
Nien Hsing v Morero Mohlahatsa LC/REV/48/2011
Thandiwe Labane and others v Tai Yuan garments (Pty) Ltd LC/43/2013
LTC v Rasekila LAC (1990-1994) 261; Lesotho Bank v Moloi LAC (1995-1999
Limkokwing University of Creative Technology (Pty) Ltd v Tebello Mothabeng
LC/REV/88/2011
Telecom Lesotho (Pty) Ltd v Seqao Phenya LC/REV/10/2010
Pheko Mafantiri v Lesotho Revenue Authority LC/13/2008
Mahoko Setipe v Nien Hsing International (Pty) Ltd LC/REV/62/2011
National University of Lesotho & Another v Motlatsi Thabane C of A (CIV)
3/2008
Thabo Makenete v Major General Justin Lekhanya and others C of A (CIV)
17/1990
Tai Yaun Garments (Pty) Ltd v Machere Leraisa & Another LC/REV/17/2012
Action Statistical Investment (Pty) Ltd t/a Pick n Pay v Lesia Monanabela &
another LC/REV/33/2011
Presitex Enterprise (Pty) Ltd v Soai Letsie and another LC/REV/162/2013
Nko v Nko LAC 1990-1994 312
CGM Industrial (Pty) Ltd v Lesotho Clothing and Allied Workers Union and
Others C of A (CIV) 10/99
Attorney General v Lesotho Teachers Trade Union & Others C of A 1991-1996
Vol. 1 LLR 16
Mamahao Nkhasi v Lesotho Electricity Corporation and 4 Others
CIV/APN/36/08
Thabiso Moletsane v Ministry of Public works and Transport LC/31/2014
Foreign
Pillay v Krishna 1946 AD 946
Garton v Hunter [1969] 1 All ER 451, [1969] 2 QB 37
CASA v Tao Ying Metal Industries & others 2009 (2) SA CC
Plascon-Evans Paints (TVL) Ltd. v Van Riebeck Paints (Pty) Ltd 1984 (3) SA
623).
Port Nolloth Municipality v Xhalisa and Lawalala v Port Nolloth Municipality
1991 (3) SA 98 (c) at 111 B21
Netherburn Engineering CC t/a Netherburn Ceramics v Mudau No & Another
(2009) 30 ILJ 279 LAC
xii
xiii
Legislation
National
Labour Code Order 24 of 1992
Labour Code Amendment Act 3 of 2000
Labour Code (Codes of Good Practice) Notice of 2003
Labour Code (DDPR) Regulations of 2001
Labour Court Rules of 1994
Labour Appeal Court Rules of 2002
Workmens Compensation Act of 1977
Labour Code Wages Order
Labour Code (Conciliation and arbitration) Guidelines of 2004
Subordinate Court Order of 1988
Foreign
Convention 156 of the ILO Standards
xiv
LC/REV/01/2010
E051/2008
APPLICANT
AND
EDGARS STORES LESOTHO (PTY) LTD
T/A JET MAFETENG
THE ARBITRATOR
Ms. M MASHEANE (DDPR)
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of arbitration award. Ten grounds of review raised and
two later withdrawn. Court not finding merit in the remaining grounds. Review
being refused and no order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
E051/2008. Ten grounds of review had initially been raised on behalf of
Applicant. However, on the date of hearing Applicant withdrew two
grounds, specifically the seventh and ninenth grounds, and only
proceeded on the basis of the remaining eight grounds.
2. The brief background of the matter is that Applicant was employed by the
1st Respondent until he was dismissed for misconduct. Unhappy with the
award, he initiated the current review proceedings. Having heard the
presentations of parties, Our judgment follows.
SUBMISSIONS AND ANALYSIS
3. The first review ground was that the learned Arbitrator erred by refusing
Applicant the opportunity to call his witness. It was submitted that
Applicant has sought the postponement of the matter to enable him to
secure the attendance of his witness. It was submitted that the evidence
of the witness was to prove that Applicant was not guilty of misconduct,
by corroborating his evidence.
4. Respondent answered that it is
point seek a postponement to
support that evident to this is
alleged events.
Further that
Page 1 of 283
Page 2 of 283
that all employees of Respondent had access. The Court was referred to
pages 25 and 27 of the record, for a record of the two incidences.
11. Moreover, it was argued that one Tlalane Toene had testified that
there was no crack on the window and that evidence corroborated that of
one Ngwenya. However, one Mrs. Moshe gave evidence that there was a
crack, thus corroborating the evidence of the Applicant. It was submitted
that the trio were the witnesses of Respondent, yet they gave
contradictory versions of what took place. The Court was referred to
pages 72, 85 and 67 of the record respectively.
12. It was argued that it was wrong for the learned Arbitrator to have
relied on the Respondents contradictory evidence. It was added that the
learned Arbitrator did not even address the contradictions, to justify Her
reliance on the evidence of the said witnesses. It was argued that clearly,
the learned Arbitrator simply did not apply Her mind to the facts before
Her and that this led Her into making the wrong conclusion.
13. Respondent answered that the learned Arbitrator addressed all the
issues complained of in Her award. It was added that Applicant is simply
unhappy with the decision and that this is an appeal disguised as a
review. However, Respondent conceded that the first witness by the
name of Moipone was not sworn in before She gave evidence, save to say
that even if ignored or disregarded, the evidence of other witnesses was
still strong enough to lead to a finding of guilt on the part of Applicant.
14. We have gone through the record of proceedings at page 4. We have
noted that there is no record of the administration of an oath on the
witness. This being the case and in the light of the finding of the Court in
Lewis Stores (Pty) Ltd v Makhabane and Others (supra), We find that it
was irregular for the learned Arbitrator to rely on evidence not taken on
oath.
15. However, We do take note that Moipone was not the only witness for
Respondent as there were other witnesses including one Ngwenya,
Tlalane and Moshe. This being the case and coupled with the fact that
Applicant has not shown the impact of the evidence of Moipone and how
declaring it inadmissible alters the conclusion made, We are inclined to
agree with Respondent that it does not nullify the award (see J.D. Trading
(Pty) Ltd t/a Supreme Furnishers v M. Monoko & others
LAC/REV/39/2004).
16. We have also considered the evidence of Moipone at pages 10 and 11
of the record. At page 10, the following is recorded:
Ntate:
Lets talk about Jets windows, what happened to them
when this incident occurred?
Moipone:
They were still well, nothing happened to them.
Page 3 of 283
Page 4 of 283
apply Her mind to the findings of the inspection in loco. It was submitted
that at inspection in loco, it was found that there was a crack on the
window. This notwithstanding, the learned Arbitrator made a finding that
all witnesses did not see the crack. The Court was referred to paragraph
43 of the award.
22. Respondent answered that the learned Arbitrator had similarly
addressed the issue in Her arbitration award. It was submitted that the
learned Arbitrator applied Her mind to the evidence of the inspection in
loco. The Court was specifically referred to page 13 of the arbitration
award, where reference is also made to authorities on the issue.
23. We have already stated what is contained in paragraph 43 of the
arbitration award. What We found is contrary to what is suggested by
Applicant, as the learned Arbitrator does not make the suggested
conclusion, but rather that She finds it odd that some of the witnesses
claim not to have seen the crack when it was so visible. This being the
case all arguments raised in this ground fail as they are based on a nonexistent claim.
24. We wish to comment that We have also perused page 13 of the
arbitration award. Regrettably, We are in disagreement with Respondent
that it deals with the findings of the inspection in loco. The page focuses
on mitigating facts and the appeal hearing at the plant level. This
notwithstanding, We maintain Our finding as Respondent claim neither
aids its defence nor alters Our decision on the issue.
25. The fifth ground of review is that the learned Arbitrator failed to apply
Her mind to the unchallenged evidence of Applicant, in the form of
invoices. It was argued that having failed to consider the invoices, The
learned Arbitrator committed a reviewable irregularity. Respondent did
not comment on this argument.
26. In law, what is not challenged is taken to have been admitted (see
Theko v Commissioner of Police and Another 1991-1992 LLR-LB 239 at
242). In view of the Respondents behaviour on the issue, We are inclined
to accept the Applicants version of the events, and to conclude that the
learned Arbitrator did ignore the said invoices. However, We wish to note
that it is not every piece of evidence that must be considered in making a
conclusion. Rather consideration must only be made to evidence that is
material to the matter. Therefore when a party claims that its evidence
was ignored or disregarded, that party must go on to demonstrate the
materiality of the said evidence (See J.D. Trading (Pty) Ltd t/a Supreme
Furnishers v M. Monoko & others LAC/REV/39/2004). In casu, Applicant
has failed to do so. Consequently, We find that the ignored invoices do
not render the award reviewable.
27. The eighth ground was that the learned Arbitrator erred in holding
that Applicant had received a letter dated 14th April 2008 and later
Page 5 of 283
relying on its content to make Her conclusion. It was argued that this
letter was withdrawn from evidence by Respondent after Applicant had
challenged its admissibility. The Court was referred to page 77 of the
record in support.
28. Respondent answered that reference was made to the letter whose
content was that Applicant was invited to submit mitigating factors. It
was argued that there was such evidence on record and that it cannot be
wished away. It was submitted that the learned Arbitrator was right to
consider the contents of the letter.
29. In law, where reference is made to a document and its content, then
that document must be placed before Court. The purpose is to have it
tested for authenticity as well as veracity. Supportive of Our attitude is
the view of the court in Garton v. Hunter [1969] 1 All ER 451, [1969] 2 QB
37, in dealing the Best Evidence Rule, the learned Judge Lord
Denning MR stated as thus,
The old rule, that a party must produce the best evidence that the nature
of the case will allow, and that any less good evidence is to be excluded,
has gone by the board long ago. The only remaining instance of it is that, if
an original document is available on ones hands, one must produce it;...
30.
Once the evidence has passed this twofold test the Court can then
rely on it to make its conclusion. In casu, Respondent made reference to
a document and upon an objection by Applicant, she elected to withdraw
it. That being the case, the document was never placed before Court for
testing. Consequently it could not be relied upon. The learned Arbitrator
was therefore wrong to rely on the said evidence to find against Applicant.
However, in the same vein Applicant has not shown the materiality of the
considered evidence to the conclusion made. We therefore find that the
learned Arbitrator did not commit a reviewable irregularity.
31. The sixth and last ground was that the learned Arbitrator erred in not
considering the fact that the charges against Applicant were not clear
enough to enable him to prepare his case. It was argued that the learned
Arbitrator had a duty to raise this issue in the proceedings. The Court
was referred to Applicants charge 3 that he did not follow the policies and
procedures. Applicant argued that it was not clear which policies and
procedures were not followed, when or even how they were breached.
32. It was argued that in Van Jaarsveld and Van Eck, Principles of Labour
Law, at page 199-201, it is said that the charges must be clear and
specific. Further that Baxter, in his book, Administrative Law 1984, at
page 597 states that fairness requires strict adjuciable procedures. It
was argued that on the strength of this said, the learned Arbitrator erred
and that Her award warrants interference with.
33. Although Respondent has not reacted to this ground, We have
observed that Applicant is not claiming to have raised the issue of an
Page 6 of 283
Page 7 of 283
being a court of equity and fairness, costs do not follow suit (see Mokone
v G4S Cash Solutions (Pty) Ltd LC/31/2012; Thabo Makhalane v The
Ministry of Law and Constitutional Affairs & others LC/PS/A/02/2012;
Thabo Moleko v Jikelele Services LC/40/2013; Kopano Textiles v DDPR &
another LC/REV/101/2007; Sefatsa Mokone v G4S Cash Solution (Pty Ltd
LC/31/2012). They are granted in extreme circumstances of frivolity
and/or vexations conduct. These are not present in casu.
AWARD
We therefore make the following award.
a) Review application is refused.
b) The award in referral E051/2008 is reinstated and must be complied with
within 30 days of issuance herewith.
c) No order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF FEBRUARY,
2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MRS. RAMASHAMOLE
MISS LEBITSA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
MR. MOLEFI
ADV. LOUBSER
Page 8 of 283
LC/30/2013
1st APPLICANT
2nd APPLICANT
3rd APPLICANT
4th APPLICANT
5th APPLICANT
6th APPLICANT
7th APPLICANT
8th APPLICANT
9th APPLICANT
10th APPLICANT
11th APPLICANT
AND
WATER AND SEWERAGE
COMPANY (PTY) LTD
RESPONDENT
JUDGMENT
Application for a declaratory order. Respondent raising two points of law. First
that Applicants claims have prescribed and that Applicants have not
established a cause of action. Court only finding merit in the second point of
law and dismissing the Applicants claims for want of jurisdiction. No order as
to costs being made.
BACKGROUND OF THE DISPUTE
1. This is a claim for a declaratory order in the following terms:
(a) Declaration that the unequal treatment of the applicants in this matter
is unfair and unlawful.
(b) Directing the respondent in this matter to pay the applicants at D upper
in accordance with the policy and practice with effect from September
2009 being the time when the applicants sought to rectify disparities.
(c) Directing respondents to pay costs of this application.
(d) Further and alternative relief.
2. The brief background of the matter is that Applicants are employees of
Respondent, at least as at the time of the referral of this matter. During
their employ, Respondent drew a policy in terms of which all employeediploma holders were to be paid at Grade D upper.
That
notwithstanding, Applicants were not paid at Grade D upper, while other
diploma holders were paid at that grade.
Page 9 of 283
Page 10 of 283
8. It was argued that on the bases of the above two authorities, the
Applicants claims be dismissed with costs. In support of the claim for
costs, it was argued that Applicants have caused Respondent to incur
costs due to their failure to observe due diligence and even continued to
fail to do so despite objections being raised against their claims.
9. In answer, Applicant submitted that the issue of condonation is irrelevant
for purposes of the claim before this Court. It was argued that with the
repeal of section 70 of the Labour code Order (supra), there is no time
limit for the referral of a claim to this Court. It was added that section
227, which Respondent seeks to rely on, does not bind this Court as it
relates to claims before the DDPR, whereas the current claim is before the
Labour Court.
10. It was further argued that this claim is based on section 226(1) (a) of
the Labour Code (Amendment) Act (supra), in that Applicants want the
Court to interpret the action of Respondent as amounting to unequal
treatment. It was added that whereas, the authority of Mantsane Mohlobo
&
Others
v
Lesotho
Highlands
Development
Authority
(LAC/CIV/A/02/2010), directs that all matters must first be conciliated
upon, the Court of Appeal in Lesotho Highlands Development Authority v
Tsotang Ntjebe & Others C of A (CIV) 07/12, said that conciliation is not
mandatory for claims under section 226(1) of the Labour Code
(Amendment) Act (supra).
11. It was furthermore argued that with the repeal of section 70 of the
Labour Code Order (supra) and in the light of the authority in Lesotho
Highlands Development Authority v Tsotang Ntjebe and Others (supra),
there is no time limit within which claims before this Court may be
referred. It was concluded that by referring the matter to the DDPR, it
was a matter of courtesy but that Applicants were not bound to do so.
12. On the second point of law, Applicants submitted that they are not
claiming discrimination but unequal treatment. The Court was referred
to paragraph 22 of the Originating application, where the following is
recorded:
22. Nature of relief south under the circumstances the applicants seek
relief as follows:
(a) Declaration that the unequal treatment of the applicants in this
matter is unfair and unlawful.
13. We concede that initially the position of the law was that all matters
that are competent for adjudication by this Court must be conciliated by
the DDPR before being adjudicated upon. However that position has
since been changed by the Court of Appeal as Applicant has rightly put.
This in essence means that parties are at liberty to elect to either first
refer their disputes to the DDPR for conciliation, or to refer them directly
to this Court for adjudication. The election notwithstanding parties are
Page 11 of 283
Page 12 of 283
Page 13 of 283
22. Applicants have asked for costs on the premise that the point in limine
that they have not established a case for discrimination is vexation, as
they are not complaining about discrimination but unequal treatment. It
was added that over and above that costs should follow suit particularly
because this Court is not limited, in casu from awarding costs. It was
argued that the limitation is only in relation to unfair dismissal claims.
23. In view of Our finding that Applicants have not make a case for
discrimination, the first premise for an order of costs fall off. Secondly,
We have stated before and continue to state that an award of cost in this
Court in only made in extreme circumstances of vexations and/or
frivolous conduct. This is Court of equity and fairness which is interested
mainly in the dispersal of substantive justice. We do not award costs on
account of failure or success in defending or prosecuting a case. The key
determinations are vexation and frivolous conduct. Consequently, a
prayer for costs under these circumstances fails.
AWARD
We therefore make an award as follows:
a) That Applicants claim is dismissed on account of failure to establish their
case for discrimination.
b) No order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF FEBRUARY,
2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MATELA
MRS. RAMASHAMOLE
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENT:
ADV. SEKONYELA
ADV. RAFONEKE
Page 14 of 283
LC/REV/08/2011
A0696/2010
APPLICANT
AND
SUN INTERNATIONAL (PTY) LTD
DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of arbitration award. Applicant having raised three
review grounds. Court only finding merit in one ground. Court finding that
determination of common cause facts does not eliminate the right of parties to
argue the matter, unless the right is specifically waived. Review being granted
and matter being remitted to be heard de novo. No order as to costs being
made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitral award in referral
A0696/2010. The brief background of the matter is that Applicant was
an employee of the 1st Respondent until his employment terminated by
resignation. Following his termination and refusal by the 1st Respondent
to pay him severance pay, Applicant referred his claim with the 2nd
Respondent.
2. Subsequent to the referral, the matter was then conciliated upon but
without success. Before the matter could be arbitrated upon, the learned
Arbitrator mero motu raised a jurisdictional concern with parties. His
concern was brought by the certificate of exemption that 1st Respondent
had relied upon, during conciliation to deny liability and therefore to
refuse to make the requested payment to Applicant.
3. Having raised this jurisdictional concern, the learned Arbitrator together
with parties determined facts which were common cause. With these
facts, the learned Arbitrator then informed parties that He would use
them to determine if He had jurisdiction to proceed to determine the
matter by arbitration. Thereafter, an award was issued wherein the
learned Arbitrator had declined jurisdiction to hear the matter. It is this
award that Applicant wishes to have reviewed and corrected. To be
specific, Applicant wishes to be awarded severance pay in the sum of
Page 15 of 283
Page 16 of 283
Page 17 of 283
COSTS
1st Respondent had prayed for costs. Among others It had claimed mala
fides on the part of Applicant in bringing this case for review. Given Our
finding, this prayer falls away and we decline to award costs.
AWARD
We thus make an award as follows:
a) The review is granted.
b) The matter is remitted back to the DDPR to be heard de novo before a
different arbitrator.
c) The order must be complied with within 30 days of issuance herewith.
d) No order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF FEBRUARY,
2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MRS. RAMASHAMOLE
MR. KAO
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
MR. MOSUOE
ADV. MPAKA
Page 18 of 283
LC/REV/12/2013
A0932/2012
APPLICANT
AND
LEKENA LETSIE
ARBITRATOR DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of Arbitration award. Several grounds of review having
been raised but only two argued. Applicant claiming the Arbitrator
disregarded its evidence and that Arbitrator upheld 1st Respondent
contradictory evidence. Court not finding merit in both grounds and refusing
the review application. Court further finding that conduct of Applicant is
frivolous and making an award of costs in favour of 1st Respondent.
BACKGROUND OF DISPUTE
1. This is an application for the review of the arbitration award in referral
A0943/2012. Seven grounds of review had initially been raised but only
two were argued. 1st Respondent had filed an application for the
dismissal of this application for want of prosecution. However, the
application was withdrawn by agreement and both parties argued the
merits of the review. Having heard the arguments of parties, Our
judgement follows.
SUBMISSION AND ANALYSIS
2. The first ground of review was that the learned Arbitrator had disregarded
the admitted facts while passing the award. It was submitted that 1st
Respondent gave evidence that he was employed on a fixed term contract.
It was argued that this evidence was disregarded by the learned
Arbitrator. It was added that having ignored this evidence, the learned
Arbitrator made an assumption conclusion that 1st Respondent was on a
fixed term contract.
3. It was submitted that at page 9 of the record, there is evidence that 1st
Respondent was a subcontractor and not on a contract without limit of
time. The Court was referred to the following record at this page:
Q:
I put it to you that applicant was a full time employee since
11/09/2011.
Page 19 of 283
A:
4. 1st Respondent answered that Applicants case before the DDPR was that
1st Respondent was on a fixed term contract and that it expired. The
Court was referred to page 2 of the record where the following is recorded:
Court
In summary how can you explain the termination of applicants contract?
Mr. Makamane
Applicants contract came to an end due to the time that was set and not
because of misconduct.
5. It was further argued that contrary to Applicants case, its witness before
the DDPR claimed that 1st Respondent was a subcontractor. The Court
was referred to the extract referenced by Applicant at paragraph 3 of this
judgement. It was added that in fact, it was the said witnesss testimony
throughout evidence that 1st Respondent was a subcontractor. It was
argued that as a result, no evidence was led by Applicant to show that 1st
Respondent was on a fixed term contract, as the whole evidence rested on
1st Respondent being a subcontractor, which was not the Applicants
defence.
6. It was further argued that 1st Respondent did not admit to anything. It
was submitted the referenced portion of evidence to support this
argument, is the evidence of Applicants witness under crossexamination. It was argued that this evidence cannot be taken to have
been an admission by 1st Respondent.
7. It was also denied that the learned Arbitrator made an assumptious
conclusion that 1st Respondent was on a contract without limit of time. It
was argued that whereas Applicant had led no evidence to show that 1st
Respondent was on a fixed term contract, there was ample unchallenged
evidence of 1st Respondent that his contract was without limit of time.
8. The Court was referred to page 9 of record, where 1st Respondent put his
case to Applicant that he was an employee on a full time basis. Further
reference was made to page 12 where 1st respondent stated his case. At
page 12, the Court was specifically referred to the following extract:
Mr. Ntaote
When you were hired were you told anything?
Applicant
I was told the site that I was going to be working on nothing more. I was
never told of the end of the contract by anyone not even Me Mpaka
(respondents witness).
9. In law, an admission of facts puts no point in issue at all, but operates to
eliminate the admitted facts from the issues to be tried. Its effect is to bind
the party making it and he or she is bound to the extent of its inevitable
consequences or necessary implications unless those are specifically stated
Page 20 of 283
Page 21 of 283
16. We are in agreement with 1st Respondent that applicant has not
shown the contradictions complained of. In fact the referenced portion of
the record demonstrate consistency in the evidence of 1st Respondent. By
this We mean that both statements made in that extract support each
other. As a result, without contradictions or inconsistencies as put by 1st
Respondent, there is no reason to treat witness evidence with caution as
sought by Applicant. Consequently, the learned Arbitrator did not err in
Her approach.
17. Regarding the issue of costs, We are of the view that the
circumstances in casu, warrant an award of costs. Clearly there is no
case to review as Applicant has failed even to lay a basis of its argument,
which step is very primary in a matter of this nature. Applicant has
failed to show both admitted facts and contradictions. It essentially has
no case at all, and has as thus been frivolous.
AWARD
We therefore make an award as follows:
a) That the review application is refused.
b) Applicant is ordered to pay costs of this application to 1st Respondent.
c) The award of the DDPR remains in force.
d) The order to be complied with within 30 days of issuance herewith.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF FEBRUARY,
2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MATELA
MR TEUOA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. TALANYANE
ADV. NTAOTE
Page 22 of 283
LC/REV/20/2007
A0384/2006
APPLICANT
AND
NEDBANK LESOTHO
NAPO RANTSANE
DDPR
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
JUDGMENT
Application for the review of the arbitration award. Applicant claiming that
Arbitrator failed to consider all the elements of section 10 of the Codes of Good
Practice. Further that Arbitrator allowed for unfair questions to be put to
Applicant and also misquoted evidence of Applicant. Court finding that
Arbitrator is not obliged to consider all elements laid out in section 10 of the
Codes of Good Practice except to those raised for determination. Further that
Applicant has failed to demonstrate how both the unfair questions and
misquoted evidence render the award reviewable. Court further finding no
sufficient reasons to awards costs. No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A0384/2006. The brief background of the matter is that Applicant was
an employee of 1st Respondent until her dismissal for misconduct. She
had then, following her dismissal, referred the matter to the 3rd
Respondent where the 2nd Respondent sat as the arbitrator. Following
the conclusion of arbitration proceedings, an award was issued wherein
the referral was dismissed on the ground that Applicants dismissal was
both procedurally and substantively fair.
2. Dissatisfied with the award, Applicant initiated the current proceedings,
wherein she sought the review, correction and/or setting aide of the said
award. The matter came before the President of the Labour Court, Mrs.
Khabo and was dismissed. She had found that the grounds raised were a
disguised appeal. Applicant then lodged an appeal with the Labour
Appeal Court against the said decision and obtained judgment. The
matter was then remitted before this Court for hearing of the merits.
3. On the first date of hearing before, following the remittal, it had been
argued on behalf of the 1st Respondent that the record of proceedings
Page 23 of 283
before the DDPR was incomplete. However that argument was withdrawn
and parties agreed that the facts that are available were sufficient for
purposes of this review. We endorsed this agreement and proceeded to
hear the matter. Having heard the arguments of parties, Our judgment
follows.
SUBMISSIONS AND ANALYSIS
4. Applicants case was that the learned Arbitrator erred in that He failed to
consider all the elements of misconduct which constituted the alleged
disobedience of the rule of employment. It was argued that in terms of
the Labour Code (Codes of Good Practice) Notice of 2003, a person
determining whether a dismissal is fair or not, is obliged to consider if the
rule was contravened, if it was reasonable, clear and unambiguous, if the
employee knew about it, if it was consistently applied and if dismissal
was an appropriate sanction.
5. It was submitted that in casu, the learned Arbitrator only considered the
requirements on knowledge of the rule and if dismissal was an
appropriate sanction. It was argued that in so doing, the learned
Arbitrator committed an irregularity warranting interference with His
award. It was argued that if the learned Arbitrator had considered all
other requirements, He would have found that the dismissal was unfair in
that the rule was invalid, unclear and ambiguous and was not
consistently applied.
6. It was argued that evidence had been led that the rule was invalid as it
was discriminatory contrary to section 66(3) of the Labour code (Order) 24
of 1992 and Convention 156 of the ILO Standards. It was submitted that
the rule allowed for the 1st Respondent to dismiss an employee for
reasons connected with family responsibility. It was argued that joining
clubs at 1st Respondent employ, was one way of carrying out family
responsibility of providing for Applicants family.
7. It was argued that the rule was unclear in that it did not demonstrate
how being a member of a grocery club could conflict with the banking
business. It was also argued that the rule was not consistently applied in
that other employees who were members of the same club, were not
charged but rather immunised from prosecution.
8. 1st Respondent answered that while Applicant appears to be dissatisfied
only with the finding of guilt on the count of dishonesty for allowing a
conflict, there were other charges for which he was found guilty, which
carry the similar sanction of dismissal. It was explained that Applicant
had been charged of two counts of dishonesty and one for
insubordination. It was submitted therefore that even if Applicant is to
succeed on this ground, it would not warrant the review of the award as
other charges still stand.
9. About the validity of the rule it was argued that the learned Arbitrator
addressed the issue at page 18 of the arbitration award, where He also
Page 24 of 283
made reference to the Labour code (Codes of Good Practice) (supra), on the
requirements. It was added that while the learned Arbitrator did not
expressly say that the rule was invalid, it is nonetheless implicit in the
award, in as much as He was not obliged to expressly say so.
10. We wish to note that in addressing the three elements alleged not to
have been addressed by the learned Arbitrator, 1st Respondent only
confined himself to the issue of the validity of the rule. This thus means
that 1st Respondent accepts the applicants version as being true and
accurate on those elements. We say this because in law what is not
challenged is deemed to have been accepted (see Theko v Commissioner of
Police and another LAC (1990-94) 239 at 242; and Plascon-Evans Paints
(TVL) Ltd. v Van Riebeck Paints (Pty) Ltd 1984 (3) SA 623). In view of this
said, We shall now proceed to deal with the rest of the arguments on this
ground.
11. Notwithstanding the above said, We are in agreement with 1st
Respondent that while there are three charges that led to the dismissal of
Applicant, she has only challenged one by way of review. We share the
similar sentiment that Applicants conduct demonstrates contentment on
her part with the verdict for those charges. As a result, We are also led to
conclude, in agreement with 1st Respondent, that a change in verdict by
this Court on the charge complained of, would not alter the decision to
dismiss. Consequently, it is Our view that it would only be academic to
consider the rest of the arguments of Applicant given the circumstances
outlined.
12. However, We wish to set the record straight in relation to section 10 of
the Labour code (Codes of Good Practice) (supra). While We admit that the
laid out procedure is couched in mandatory terms, it is subject to there
being a dispute on any of the given requirements. That is to say, where
parties are clear on which issues are common to them and on which
there exists a dispute, the decision maker cannot be expected to
determine issues not in dispute, but to only focus on what requires their
determination. It is therefore inaccurate that the learned Arbitrator was
obliged to consider all the elements laid out under section 10 of the Codes
of Good Practice (supra).
13. Applicants case was also that the learned Arbitrator allowed
oppressive questions to be put to her and further that He misquoted her
evidence. Regarding the oppressive questions, it was submitted that
Applicant had objected to the statement by 1st Respondent representative
that Applicant was limited only to asking questions on clarity and not
attempt to explain her evidence in chief. Further, Applicant claimed that
in another incidence, an unfair question was put to her and when she
objected to it, rather than to address it, the learned Arbitrator reserved
His ruling for a final analysis in the arbitration award. Furthermore, it
was submitted that when Applicant objected to a question put to her, the
learned Arbitrator refused to refer back to the record to determine if the
Page 25 of 283
objection had merit or not. It was argued that this was irregular and
contrary to the principle in Maliehe & Others v Rex 1995-1999 LAC 258 at
263.
14. In answer, 1st Respondent submitted that Applicant has not given a
single instance of an oppressive question either in her founding affidavit
or in the record. It was argued that Applicant is attempting to make a
case from the bar which is different from what she had in her affidavit
canvassed. It was submitted that this should not be allowed. The Court
was referred to the cases of Port Nolloth Municipality v Xhalisa and
Lawalala v Port Nolloth Municipality 1991 (3) SA 98 (c) at 111 B21, in
support.
15. It
was
further
argued
that
the
learned
Arbitrator had no obligation in law to go back to the record to confirm
what was being put to witness. Further that in addition to the nonexistence of a legal obligation, it is not even suggested that the learned
Arbitrator did not back track on the record. Further that it is not even
suggested that the learned Arbitrator relied on distorted evidence or even
the oppressive statements to confirm the dismissal of Applicant. It was
prayed that this point be dismissed.
16. It is a procedural obligation of any decision maker to ensure that the
processes involved in their decision are fair. This includes protecting the
parties to the proceedings. Our point is basically that it is wrong for a
decision maker to default on their obligation to ensure fairness. However,
it is important that a party complaining about a breach of this obligation
go further to demonstrate what or how that unfairness has affected the
decision made. The Court cannot speculate this as that practice is
strongly shunned by Our Courts (see Pascalis Molapi v Metcash Ltd
Maseru LAC/CIV/REV/09/2003)
17. In casu, We agree with 1st Respondent that Applicant has failed to
demonstrate how both the alleged unfair question or the distortion in the
evidence has affected the decision of the learned Arbitrator, so as to
warrant a review of His decision. This is in addition to the fact that no
reference has been made to the record where the both the unfair
questions or the distorted evidence is alleged to appear. Our attitude
applies even in relation to the argument that the learned Arbitrator
refused to back track on his record, notwithstanding the fact that indeed
there is no legal obligation of the learned Arbitrators part to do so. Even
the authority cited by Applicant, relating to the argument to refer back on
the record, does not make or impose such an obligation. It is thus
misplaced in the current circumstances. Therefore this point fails as well
and We deem it unnecessary to consider the rest of its content.
Page 26 of 283
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
ADV. TEELE
ADV. KENNEDY
Page 27 of 283
LC/REV/139/2013
A0413/2013
APPLICANT
AND
TAJANE TAJANE
DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of arbitration award. Applicant seeking an award for
costs of application for dismissal for want of prosecution. Court finding that
claim for costs is overtaken by events. Applicant having raised three grounds
of review. The rule in motion proceedings being considered. Content of
unreasonableness as a review ground also considered. Court refusing the
review application and no order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A0413/2013. 1st Respondent was an employee of Applicant until he was
dismissed for misconduct. Dissatisfied with his dismissal, he referred a
claim for unfair dismissal with the 2nd Respondent. On the 17th October
2013, the 2nd Respondent issued an award wherein, it had been ordered
that Applicant reinstate 1st Respondent in terms of section 73(1) of the
Labour Code Order 24 of 1992.
2. Equally unhappy with the 2nd Respondent decision, Applicant initiated
the current review proceedings to have the said award reviewed, corrected
and/or set aside. Following the referral of the review application, 1st
Respondent lodged proceedings for dismissal for want of prosecution,
wherein he had argued that Applicant had initiated these proceedings to
delay the execution of his award and therefore that the matter be
dismissed.
3. The dismissal application was duly set down for hearing on the 13th
November 2014. On that day both parties appeared before this Court to
present an agreement, whose terms included in the following:
a) The matter would be postponed to the 20th January 2015 for argument
in the merits; and
b) That an award for wasted costs of the day on attorney and client scale
be made in favour of 1st Respondent.
Page 28 of 283
Page 29 of 283
Page 30 of 283
In my view it is not open to the appellant to now argue the case which it
did not foreshadow in its founding affidavit.
Given the dictates of the rule in motion proceedings, Applicant is bound
by the content of his pleadings. As they stand, Applicant has failed to
make out a case for review on this ground. It is therefore dismissed.
15. On the second ground, We have gone through the referenced pages in
support. At page 24, We have been directed to the following extract:
Mr. Bohloko: Yes, what did you find? Was it intentional or
accidental?
Mr. Molefi:
I found out as if it was intentional because he was
denying that it was himself.
At page 32 33
Mr. Bohloko:
It never happened?
Mr. Molefi: Yes sir. It can happen intentionally, that
Mistake he made.
16. From the above extracts, nothing speaks to the value of the alleged
damage. We say this because, most of the emphasis is place on the value
of the loss sustained by Applicant to suggest that the gravity of the
misconduct warranted dismissal as a sanction. The extract does not even
touch on the quantity that is alleged to have been damaged. We do not
find the basis of the argument that the learned Arbitrator ignored
evidence showing that a lot of property had been damaged.
17. We wish to that the evidence of damage to property was considered
from paragraph 8 to 11 of the arbitration award. In this portion of the
arbitral award, the learned Arbitrator makes a deeply considered analysis
which is also backed by authorities. Therefore, it cannot be accurate that
the said evidence was not considered. We do confirm that the learned
Arbitrator considered the relevant evidence to the matter. Consequently,
Applicants argument fails.
18. On the last ground, it is Our view that unreasonableness, where
pleaded in a claim, suggests that given a conclusion made, a particular
result is the only one that is reasonable so that any other that deviates
from that inevitable conclusion or result is unreasonable (see Carephone
(Pty) Ltd v Marcus NO & 7 others (1998) 11 BLLR 1093 (LAC) at 1103). In
casu, Applicant is not suggesting that the learned Arbitrator made a
conclusion but rather claims that the evidence was clear. He is not even
suggesting that the clear evidence was accepted by the learned Arbitrator
in order to compel Him to a certain specific conclusion. This therefore
cannot be the promise of a claim for unreasonableness.
19. Even assuming that such a conclusion had been made that the 1st
Respondent had committed the misconduct, the sanction of dismissal
was not the only possible and/or appropriate sanction.
The
appropriateness of the sanction depends on several factors including
Page 31 of 283
those contained under section 10(3) of the Codes of Good Practice (supra)
as outlined by Applicant above at paragraph 7 of this judgment.
Therefore, the argument must also fail.
AWARD
We therefore find that,
a) The review application is refused.
b) The award in referral A0413/13 remains in force and must be complied
with within 30 days of issuance herewith.
c) No order as to costs is made.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF FEBRUARY,
2015.
T. C. RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MATELA
MRS. RAMASHAMOLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
ADV. NONO
ADV. RASEKOAI
Page 32 of 283
LC/REV/43/2013
A0665/2012
1st APPLICANT
2nd APPLICANT
3rd APPLICANT
4th APPLICANT
5th APPLICANT
6th APPLICANT
7th APPLICANT
8th APPLICANT
9th APPLICANT
10th APPLICANT
AND
EXAMINATION COUNCIL
DDPR C/O MR. KALAKE T.
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of arbitration award. Applicant claiming that arbitrator
ignored evidence. Court finding that evidence was ignored but that it does not
render the award reviewable. Court refusing the review application and
further not making an award as to costs.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A0665/2012. The brief background of the matter is that Applicants were
employees of 1st Respondent, at least as at the time of the referral of the
matter. They had referred claims for underpayments with the 2nd
Respondent. The matter was duly heard and an award later issued
dismissing their claims. It is this award that Applicants wish to have
reviewed, corrected and/or set aside. Only one review ground has been
raised on behalf of Applicants and having heard parties, Our judgment
follows.
SUBMISSIONS AND ANALYSIS
2. Applicants case is that they led evidence showing how much they earned
and what others who did the same job as them earned. It was argued
that this was evidence of underpayments which the learned Arbitrator
ignored. It was submitted that had the learned Arbitrator considered this
evidence in His award, He would have found that the Applicants had been
Page 33 of 283
underpaid.
The court was referred to page 23 of the record of
proceedings, where Applicants had given evidence that others earned
M4000 and M5000 per month. The Court was further referred to page 25
the record reflects, where one of the Applicants testified that they earned
M78.00 per day. It was argued that with these pieces of evidence the
learned Arbitrator should have found that there were underpayments.
3. The Court was further referred to page 6 of para 13 of the arbitration
award where the Arbitrator stated that there was no evidence yet same
was presented before him. It was added that over and above the evidence
shown on pages 23 and 25, there was also the referral document which
the learned Arbitrator was enjoined to consider. It was prayed that on
those basis, the review be granted.
4. 1st Respondent answered that Applicants did not present sufficient
evidence to enable them to obtain the relief sought. It was argued that
Applicants merely claimed to have earned M78.00 while others earned
M4000.00 and M5000.00. It was added that they did not substantiate or
attempt to demonstrate how that amounted to an underpay. Further that
the learned Arbitrator could not have been expected to consider the
referral it was not part of the evidence of parties but merely their claim
that they had to prove in the proceedings.
5. It was further argued that in law, it is the obligation of an Applicant party
to lead evidence to sustain their claim. It was submitted that in casu,
Applicants have failed on this obligation. The Court was referred to the
case of Ministry of Public Service & Another . Masefabatho Lebona C of A
(CIV) 06/2012, where the court held that in a claim for underpayments, it
is the obligation of parties to prove their claim. It was prayed that this
Court adopt a similar approach and dismiss this application, particularly
because at page 6 of the award, specifically at paragraph 13, the learned
Arbitrator had stated there was no sufficient evidence.
6. We have considered the referenced portion of the record by both parties.
At page 23, a question is posed to one of the applicants and she answers
as thus,
Mr. Mabula
:
How much does a clerk earn now?
Ms. Makaaka :
They earn about M4000 and M5000
At page 25, the following is recorded,
Mr. Mabula:
I put it to you that M78 is above the minimum wage
as prescribed by law of the clerk.
Ms. Makaaka:
I do not agree because I do not know.
7. We wish to first note that as a matter of procedure before courts of law,
the only way to determine if evidence has been considered is if the
decision maker makes mention of same in the analysis of evidence.
Therefore, where evidence is not mentioned, then that is sufficient to
serve as proof that it was not considered. In casu, We have perused the
Page 34 of 283
arbitration award and have discovered that there is nowhere where the
above evidence has been mentioned. We therefore agree with Applicants
that it has not been considered.
8. We have often stated before that the mere fact that evidence was ignored
is not sufficient to justify the granting of a review application. One must
go further to show the effect of the irregularity complaint of on the
decision made. To answer this question, We must consider the probative
effect of the evidence of Applicant which has not been considered on the
conclusion made. Put differently, if considered, would the learned
Arbitrator have made a different conclusion, as Applicants argue (See J.D.
Trading (Pty) Ltd t/a Supreme Furnishers v M. Monoko & others
LAC/REV/39/2004). If the answer is in the affirmative, then the conduct
of the learned Arbitrator will not only have amounted to an irregularity
but one that is reviewable.
9. Applicants have claimed that if considered this evidence would lead to the
conclusion that there were underpayments.
On the contrary, the
suggested conclusion would not sustain. The mere fact that Applicants
were said M78 does not make it an underpayment. There would have to
be more facts to substantiate that, which facts have not been given as
evidence. We therefore agree with both the learned Arbitrator and 1st
Respondent that Applicants have failed to give sufficient facts to sustain
their claims.
10. We also wish to note that We accept and acknowledge the authority of
Ministry of Public Service & Another v Masefabatho Lebona (supra), and
accordingly adopt the attitude taken there in these proceedings. We also
wish to add that We agree with 1st Respondent that even the referral
would not have advanced the case of Applicants in any way. The referral
is a document that states the claim and not the evidence of parties.
Therefore, notwithstanding its presence on record, parties are still
expected to lead evidence in support of their claims, including evidence
contained in the referral document so that it may be tested.
Page 35 of 283
AWARD
We therefore make an award as follows:
a) The review is refused.
b) Award in A0665/12 remains in force.
c) No order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF FEBRUARY,
2015
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MOTHEPU
MR KAO
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR 1st RESPONDENT:
ADV. NONO
ADV. RAFONEKE
Page 36 of 283
LC/REV/104/2013
C0148/2011
APPLICANT
AND
OK BAZAARS LESOTHO (PTY) LTD
T/A SHOPRITE
DDPR ARBITRATOR (L NTENE)
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of arbitration award. Application having been filed out
of time together with an application for condonation. Court adopting a holistic
approach to the matter. Court granting the condonation application. Court
finding no merit in the allegation of irregularity that the matter was res
Judicata when it was reheard. Court further finding that Arbitration was right
in not considering evidence that was led in the rescinded matter. Review
application being refused and no order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
C0148/2011. However involved the history of this matter is, briefly
Applicant initiated a claim for unfair dismissal with the Directorate of
Dispute Prevention and Resolution (DDPR). In default of 1st Respondent,
Applicant obtained an award in terms of which he was to be reinstated
without loss of income in terms of section 73 of the Labour Code Order 24
of 1992. This award was delivered on 18th May 2012.
2. Subsequent thereto, the matter was reheard on the 30th August 2012
with both parties in attendance. On 29th September 2012, an award was
issued dismissing Applicants claim. Dissatisfied with the new decision,
Applicant initiated the current review application, wherein he has raised
only one ground of review. His complaint is that the learned Arbitrator
sitting in the second hearing disregarded both the initial award and
evidence tendered in those proceedings.
3. This application has been filed out of time and it was accompanied by an
application for condonation.
Both applications have been strongly
st
opposed by the 1 Respondent.
Having addressed Us on them
holistically, Our judgment follows.
Page 37 of 283
Page 38 of 283
Page 39 of 283
not evidence before Her. It was added that even the record of proceedings
does not reflect the said document to have been tendered. It was prayed
that this argument be dismissed as well.
16. We have gone through the initial record of proceedings, specifically at
page 1 as referenced by Respondent. At this page the following is
recorded,
Application for rescission
Applicants Addresses
Reason for non-attendance
As stated in the affidavit on the date of hearing i fell ill. Therefore I delayed
to send someone to represent the company she unfortunately arrived late
and was advised to apply for rescission.
Prospects of success
Respondent was caught red handed in the possession of goods that were
not paid for.
Respondent:
I do not approve the application for rescission.
RULING
The application for rescission is granted.
Reason will follow.
17. Clearly, the rehearing cannot be clarified as res judicata as the initial
award was rescinded. This meant that it had been reopened. The
defence of res judicata requires that one establish that the current and
old matters be based on the same set of facts and have been finalised
between the same parties (see Potlako Thabane & another v Workmens
Compensation Trust Fund Committee & two others LC/08/2009). Clearly
in casu, these requirements have not been met.
18. Regarding KM3, We wish to confirm that Applicant has not referred Us
to any portion of the record where it was tendered in the rehearing
proceedings. As a result, this leads Us to conclude that it was never
tendered in the arbitration proceedings in issue, as Respondent alleges.
As a result, the learned Arbitrator was right in not considering it. This is
the position irrespective of the fact that the said document may have been
tendered in the initial arbitration proceedings. Therefore, this argument
also fails.
Page 40 of 283
AWARD
On the strength of the above reasons, we make an award as follows.
a) That the review application is refused.
b) The award of the 2nd respondent in C0148/2011 is hereby reinstated and
must be complied with within 30 days of issuance herewith.
c) No order as to costs is made.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF FEBRUARY,
2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. KAO
MR. TEUOA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
ADV. MOSUOE
ADV. RAFONEKE
Page 41 of 283
LC/REV/41/2011
A0877/2010
APPLICANT
AND
OK BAZAARS LESOTHO
PTY LTD T/A SHOPRITE
DDPR ARBITRATOR (L. NTENE)
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of the arbitral award. Applicant raising only one ground
of review that Arbitrators decision was irrational, capricious and arbitrary.
Court finding that Arbitrator acted irrationally in making her award and
granting the review. Court finding that it has jurisdiction to correct the award.
Court accordingly correcting the award. No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A0877/10. The brief background of the matter is that Applicant was an
employee of the 1st Respondent until her dismissal for misconduct.
Unhappy with the decision to dismiss her, she referred a claim for unfair
dismissal with the 2nd Respondent. The matter was duly arbitrated upon
at the end of which the learned Arbitrator awarded her compensation. It
is this award that Applicant seeks to have reviewed, corrected and/or set
aside. Both parties were heard and Our judgment follows.
SUBMISSIONS AND ANALYSIS
2. Applicants case was that the decision of the learned Arbitrator was
irrational, capricious and arbitrary. It was submitted the evidence of 1st
Respondent was rejected by the learned Arbitrator but that
notwithstanding, She relied on the same evidence in awarding
compensation, instead of reinstatement. It was argued that having found
that there was no substance in the dismissal of Applicant, the Learned
Arbitrator was bound by the dictates of section 73 of the Labour Code
Order 24 of 1992, to award the remedy of reinstatement, more so
because, other than the charge, no evidence of impracticality was led.
The Court was referred to the case of Edcon Ltd v Pillemer No & Others
2010 BLLR ISCA. It was submitted that in this case, the Court having
found the dismissal to be substantively unfair awarded the remedy of
Page 42 of 283
Page 43 of 283
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
MR. MOSUOE
ADV. MABULA
Page 44 of 283
LC/REV/95/2012
APPLICANT
AND
SEKOALA MOTSOASELE
DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Applicant for rescission of judgment granted by default. Applicant establishing
a reasonable explanation but failing to demonstrate prospects of success on
review. Court finding that a rescission is not due where there are no prospects
of success and refusing same. Court not finding sufficient grounds to award
an order of costs against Applicant. No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the rescission of judgment of this Court issued
on 13th December 2014. The brief background of the matter is that 1st
Respondent was an employee of Applicant until his dismissal for
misconduct, on or around the 1st November 2011. Unhappy with his
dismissal, 1st Respondent referred a claim for unfair dismissal with the
2nd Respondent. The matter was heard and an award was issued in
favour of 1st Respondent on the 23rd July 2012. In terms of the award,
Applicant was to pay 1st Respondent an amount of M727, 801-20 as
compensation.
2. Dissatisfied with the award, Applicant lodged review proceedings with this
Court on the 5th October 2012 and obtained an order for stay of
enforcement and the dispatch of the record in the DDPR proceedings. On
the 10th January 2013, Applicant was served with a notice calling upon it
to come and collect the said record for transcription, but never did.
About 9 months later, 1st Respondent initiated an application for
dismissal of the review application for want of prosecution.
1st
Respondent had claimed the review application was merely intended to
frustrate enforcement of the award made in his favour, as nothing further
had been done to have the matter finalised since its referral.
3. We had then agreed with 1st Respondent and dismissed the matter. The
order of this Court was delivered on the 21st November 2013 and a
written judgment was later issued on the 13th December 2013. Following
Page 45 of 283
receipt of the order of this court, Applicant initiated the current rescission
application.
On the date of hearing of the rescission application,
applicant sought to have the matter postponed. It was claimed by Adv.
Mohapi for applicant that the matter was being handled by one Advocate
Peete and that he was unable to attend on account of his wifes illness.
The postponement was strongly opposed by Mr. Letsika for 1st
Respondent. We then directed both parties to address Us on the issue.
4. Adv. Mohapi argued that given that an allocation had already been made
to Advocate Peete, he was not in a position to argue the matter. Mr.
Letsika in answer, argued that this is a 2 paragraph application with 7
sentences. He submitted that Advocate Mohapi, if at all the Applicant is
serious about the matter, can ask for the matter to be stood down to
allow him to prepare rather than to have it postponed. We agreed with
Mr. Letsika and refused the postponement. We then offered to stand the
matter down to allow Advocate Mohapi to make preparations.
He
however, rejected the offer and stated that he did not need time to
prepare as he was ready.
APPLICATION FOR RESCISSION
5. Adv. Mohapi for Applicant argued that they failed to attend the hearing
because they did not know about the date of hearing. He argued that
they were never served with the notice of hearing and that as a result
they could not attend the hearing. He submitted that Applicants failure
to attend was therefore not wilful, but due to circumstances beyond its
control.
6. He further submitted that Applicant had prospects of success in that they
were seeking the review of the arbitration award on account of
unreasonableness of the decision of the learned Arbitrator. Reference
was made to paragraph 6 of the Applicants Notice of Motion. It was
argued that having disclosed their case, this is sufficient for this Court to
grant them a rescission. The Court was referred to the Labour Appeal
Court decisions in Security Lesotho v Lebohang Moepa and; Security
Lesotho v Khauhelo Moeno ; and Ntseke Molapo v Mphuthing & Others
1995-1996 LLR-LB 576, in support.
7. In answer, 1st Respondent submitted that it is inaccurate that Applicant
was not notified about the date of hearing. It was argued that this Court
serves its own processes including the notices and further that It could
not have heard the matter unless satisfied that all parties were aware
that it was to be heard. Further, that there is nothing on the part of
Applicant to suggest reasons why it may have not been served with the
said process.
8. On the prospects, it was argued that there is nothing said by Applicant to
support their claim for unreasonableness.
It was submitted that
Applicant has simply made a bare statement of prospects of success.
Further, it was submitted that even if this Court were to buy into this
Page 46 of 283
Page 47 of 283
Page 48 of 283
AWARD
Having considered both submissions and evidence, We make an award as
follows:
a) That the rescission application is refused.
b) The order of this Court issued on the 21st November 2013 remains in
force.
c) The award of the DDPR in referral A1115/2011 is reinstated and it must
be complied with within 30 days of issuance herewith.
d) No order as to cost.
THUS DONE AND DATED AT MASERU ON THIS
FEBRUARY, 2015.
11th DAY OF
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. KAO
MR. MOSEHLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. MOHAPI
MR. LETSIKA
Page 49 of 283
LC/REV/69/2014
A0235/2013
APPLICANT
AND
HLALELE RALIENYANE
DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of arbitration award. Applicant having raised four
grounds. Applicant claiming that record is incomplete; that decision of
arbitrator is unjustified, that Arbitrator awarded both compensation and
reinstatement; and that Arbitrator awarded reinstatement where
circumstances did not permit. Court not finding merit in all grounds raised.
Court further finding that some of the grounds are appeal disguised as review
as they challenge the decision of the arbitrator and not the procedure for
reaching the aid decision. Court refusing the review application. No order as to
costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A0235/2013. The brief background of the matter is that 1st Respondent
was an employee of Applicant until he was dismissed for misconduct. He
then referred a claim for unfair dismissal with the 2nd Respondent. An
award was thereafter issued in his favour, wherein Applicant was ordered
to reinstate him without loss of wages, in terms of section 73 of the
Labour Code Order 24 of 1992. It is this award that Applicant wishes to
have reviewed, corrected and/or set aside. Three grounds of review have
been raised on behalf of Applicant, and having heard parties, Our
judgment follows.
SUBMISSIONS AND ANALYSIS
2. Applicant argued that the record of proceedings in arbitration
proceedings before the DDPR is incomplete contrary to Regulation 30 of
the Labour Code (DDPR) Regulations of 2001. It was argued that the
record does not reflect the cross examination of Applicants witness, one
Mr. Xiao Bing. It was added that Mr. Xiao Bing had led evidence under
cross examination that reinstatement was not practical. It was further
argued that the record, on account of its incompleteness, does not reflect
the parties arguments on costs.
Page 50 of 283
Page 51 of 283
Page 52 of 283
Respondent would
reinstatement.
not
accept
the
Page 53 of 283
AWARD
We therefore make an award as follows,
a) The review application is refused.
b) The arbitration award in referral A0235/13 is reinstated.
c) The said award must be complied with within 30 days of issuance
herewith.
d) No order as to costs.
THUS DONE AND DATED IN MASERU ON THIS 11th DAY OF FEBRUARY,
2015.
T. C. RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. KAO
MR. MOTHEPU
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
Page 54 of 283
LC/REV/142/2013
APPLICANT
AND
DDPR MASERU
MAMOSEBI MATLI
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for rescission of an order of this court. Court not finding the
explanation given reasonable. Applicant failing to allege prospects of success.
Court finding no merit in the rescission application and dismissing same. No
order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the rescission of an order dismissing the
Applicants review application for non-prosecution. The brief background
of the matter is that 2nd Respondent was Applicants employees until his
dismissal from employment. Dissatisfied with her dismissal, she initiated
an unfair dismissal claim with the DDPR. She then successfully obtained
judgment in default of Applicant.
2. Armed with the default award, and dissatisfied with same Applicant
initiated rescission proceedings. The said application was filed out of
time together with an application for condonation. Having considered the
applications, the learned Arbitrator refused them and reinstated his
initial decision.
3. Similarly dissatisfied with the rescission award, Applicant initiated the
current review proceedings. As with the Respondent primary claim, the
review application was heard and dismissed in default of Applicant. It is
this order that Applicant wishes to have rescinded. Having heard parties
submissions, Our judgment follows.
SUBMISSIONS AND ANALYSIS
4. Applicants case was that after filing the main review application, they
were served with a copy of compact disc, allegedly claimed to contain the
record of proceedings in the matter subject of review. Upon transcription
they found that the disc was empty. They then wrote to the Registrar of
this Court to bring this discovery to Her attention. They claim that the
Page 55 of 283
Page 56 of 283
11. We are therefore of the view that given the circumstances, Applicant
had no satisfactory reason for its default. While We understand that at
some stage, as illustrated by the letter annexed to its founding affidavit,
that the compact disc alleged to have contained the record had problems,
no sufficient explanation has been given to explain its failure to attend on
3rd July 2014, even just to seek the indulgence of the Court to postpone
on the agreed terms. What makes the Applicant case worse is that it does
not even attempt to suggest that they had both agreed that Respondent
would seek that indulgence on their behalf on the said day.
Consequently, there is no reasonable explanation for the default.
12. About the prospects of success, We note that they have not been
pleaded. There is a rule in motion proceedings that parties stand and fall
by their pleadings. In relation to the rule, the Court in Netherburn
Engineering CC t/a Netherburn Ceramics v Mudau No & Another (supra).
At paragraph 25, the Court had the following to say,
... on my understanding the rule that in motion proceedings the applicant
must make his case in his founding affidavit and that you stand or fall by
your papers has not been abolished and still applied.
13. Further supporting Our view, is the authority of Thabo Phoso v
Metropolitan Lesotho LAC/CIV/A/10/2008, where the Court had the
following to say,
In several of its decisions the Court of Appeal of Lesotho has more than
once deprecated the practice of relying on issues which are not raised or
pleaded by the parties to litigation.
14. As a result, and in view of the above principles, We are inclined to
agree with Respondent that Applicant has no prospects of success in the
matter hence why they are not pleaded. In view of the absence of
prospects of success and in view of the lack of a reasonable explanation
for the default, this application cannot sustain.
15. Our view finds support in the High Court of Lesotho case in
Moshoeshoe v Seisa & Others (supra), where the Court relying on an
extract from the case of Jerome Ramoriting & Another vs Lesotho BankNational Development Bank (CIV/APN/136/87, had the following to say,
It is not sufficient if only one of this(sic) two requirements is met, for
obvious reasons a perty showing no prospects of success on the merits will
fail in an application for rescission of judgement no matter how reasonable
and convincing the explanation of his default. Moreover, a perty which
simply disregards the courts procedural rules with no explanation cannot
be permitted to have a judgement against him rescinded merely because he
had reasonable prospects of success on the merits.
Page 57 of 283
AWARD
We therefore make an award as follows:
a) The application for rescission is refused.
b) The judgment of this court made on the 3rd July 2014 remains in force.
c) No order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF FEBRUARY,
2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MOTHEPU
MRS. THAKALEKOALA
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENT:
ADV. MOJELA
MR. LETSIE
Page 58 of 283
LC/REV/44/2013
A0087/2012
APPLICANT
AND
LIQHOBONG MINING
DEVELOPMENT (PTY) LTD
DDPR
ARBITRATOR N. MOSAE
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
JUDGMENT
Application for review of arbitration award. Applicant having raised three
grounds of review based on estoppel, ultra vires and lis pendens. Court
finding that estoppel has been misapplied by Applicant. Further that the
learned Arbitrator acted within the scope of his powers and therefore not ultra
vires. Furthermore that the claim for lis pindens can at best be raised against
the secondary matter. Review application being refused and award of DDPR
being reinstated, subject to the direction of the Labour Appeal Court. No order
as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A0087/2012. The background of the matter is that Applicant was an
employee of the 1st Respondent until his dismissal for misconduct.
Unhappy with the dismissal, he referred a claim for unfair dismissal with
the 2nd Respondent, coupled with another claim for unpaid overtime.
2. The matter was duly conciliated upon during which process, the unpaid
overtime claim was resolved by settlement. The matter then proceeded
into arbitration only in respect of the unfair dismissal claim. At the
commencement of the arbitration proceedings, 1st Respondent, who bore
the evidentiary burden to prove the fairness of the dismissal, sought the
indulgence of the learned Arbitrator to stay the proceedings to enable
them to have the matter heard before the Labour Appeal Court, as a
Court of first instance.
3. 1st Respondent reasons for the indulgence were that their key witness,
one Thabo Khoboli was refusing to testify in the proceedings before the
2nd Respondent. Further that given the lack of power, on the part of the
2nd Respondent to subpoena a witness, they wished to apply before the
Page 59 of 283
Labour Appeal Court for an order to have the matter heard in that Court
as a Court of first instance.
4. The indulgence was duly granted and parties were directed to bring
feedback and for direction on the 10th October 2012. On the said date,
parties appeared before the learned Arbitrator and reported that the
application had just been made on that day and that they were waiting
for a date of hearing.
The learned Arbitrator then extended the
indulgence with similar condition to the 1st November 2012. On the 24th
October 2012, the application before the Labour Appeal Court was heard
and finalized, and an award was made in favour of the 1st Respondent.
Parties were then promised a full written judgment on the 26th of the
same month. However, they only got it sometime in January of 2013.
5. On the 1st November of 2012, and contrary to the directive of the learned
Arbitrator both parties failed to attend to appraise the learned Arbitrator
with developments in the matter before the Labour Appeal Court. In an
effort to extend the opportunity to be heard to both parties, the learned
Arbitrator had the matter re-set for hearing on the 5th December 2012.
Still on this day both parties failed to attend. The learned Arbitrator then
proceeded to dismiss the matter for want of prosecution, citing among
others His view that Applicant had lost interest in the matter, as he had
failed to attend on the two stated occasions. It is this award that
Applicant wishes to have reviewed, corrected and/or set aside.
6. We wish to note that this matter was not opposed and that Adv.
Moshoeshoe, for 1st Respondent, was in attendance to confirm this. We
intimated to parties that notwithstanding absence of opposition, it was
still within Our discretion to either grant or refuse the application
depending on its merits. Having heard Applicants submissions, Our
judgment follows.
SUBMISSIONS AND ANALYSIS
7. Applicants case was that the learned Arbitrator had erred by dismissing
his referral following the learned Judge Mositos decision to hear the
matter before the Labour Appeal Court as a Court of first instance. It was
argued that in view of the decision of the Labour Appeal Court, the
learned Arbitrator became estopped from making an award that negates
the judgment of the Labour Appeal Court. The Court was referred to the
cases of Hohaadien v Stanley Porter (Paarl) (Pty) Ltd 1970 (1) SA 394 (A)
and RAS Liquor Licensing Board Area 11 Kimberly 1966(2) SA 232 (c) at
238, for the principle of estoppel and in support of the argument.
8. The principle of estoppels provides that,
.....someone who has been brought under an incorrect impression by
another and who in reliance on that impression has acted to his detriment,
may prevent the other from relying on the correct state of affairs before a
court. (see Schalk Van Merwe etal; Contract General Principles, 1st Ed.
Juta and Co., at page 23.
Page 60 of 283
Page 61 of 283
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
ADV. LEPHUTHING
ADV. MOSHOESHOE
Page 62 of 283
LC/REV/57/12
E002/2006
APPLICANT
AND
THE DDPR
M MASHEANE: ARBITRATOR
SELLO MAFEREKA
TOEU MOHLOKI
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
4th RESPONDENT
JUDGMENT
_______________________________________________________________
Application for the review of arbitration award. Applicant raising only one
ground of review that Arbitrator awarded both compensation and lost
earnings. Court finding that Arbitrator did not award both compensation and
lost wages, but that Arbitrator considered lost wages in awarding
compensation. Court finding that the approach of Arbitrator was not irregular.
Review application being refused and no order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
E002/2006. This matter has a rather protracted history. Briefly, 3rd and
4th Respondents were employees of Applicant until they were dismissed.
Dissatisfied with their dismissals, they referred a dispute to the DDPR for
unfair dismissal. The DDPR found their dismissal to have been unfair
and awarded them reinstatement in terms of section 73(1) of the Labour
Code Order 24 of 1992.
2. Applicant then took the award on review where it was found that learned
Arbitrator had erred in making the award. The matter was then remitted
back to the DDPR for consideration of the practicality of reinstatement.
On remission, the learned Arbitrator awarded the 3rd and 4th Respondents
amounts in the sum of M132,623-00 and M144,122-00 respectively. It is
this award that Applicant wishes to have reviewed, corrected and/or set
aside. Having considered the submissions of parties, Our judgment
follows.
SUBMISSIONS AND ANALYSIS
3. Applicants case is that the learned Arbitrator erred by awarding a 12
months salary as compensation, and in addition thereto awarding 75
months salary as lost earnings. It was argued that the learned Arbitrator
Page 63 of 283
Page 64 of 283
9. It was argued that the manner in which section 73 of the Labour Code
Order (supra) has been drafted, gives the learned Arbitrator a wide
discretion including what She did in making the award in issue. It was
submitted that the learned Arbitrator was right in awarding the 75
months salaries, in addition to the 12 months salaries compensation
awarded.
10. It was further argued that if the Court should feel tempted to temper
with the award, that it must do so in favour of the principle in the Court
of Appeal decision in Lesotho Bank v Mahlomola Khabo (supra), that
compensation must include the difference between what an applicant
party was entitled to as the salaries after the dismissal, and what that
applicant party would have received had the contract been fulfilled.
11. It was further argued that the Lesotho Bank v Mahlomola Khabo
(supra), approach is supported by the decision of the Labour Appeal Court
in Standard Lesotho Bank v Nena & Others LAC/CIV/A/06/2008. It was
submitted that in this case, the Court awarded severance pay and
compensation of nine months salaries in addition. It was argued that in
so doing the Court applied the similar principle as that which was applied
by the Labour Appeal Court in Pascalis Molapi v Metcash Ltd Maseru
(supra). It was prayed that the review be dismissed.
12. The provisions of section 73 of the Labour Code Order (supra), are as
follows,
(1) If the Labour Court or arbitrator holds the dismissal to be unfair, it
shall, if the employee so wishes, order the reinstatement of the employee in
his or her job without loss of remuneration, seniority or other entitlements
or benefits which the employee would have received had there been no
dismissal. The Court or arbitrator shall not make such an order if it
considers reinstatement of the employee to be impracticable in light of the
circumstances.
(2) If the court or arbitrator decides that it is impracticable in light of the
circumstances for the employer to reinstate the employee in employment, or
if the employee does not wish reinstatement, the court or arbitrator shall fix
an amount of compensation to be awarded to the employee in lieu of
reinstatement. The amount of compensation awarded by the Labour Court
or arbitrator shall be such amount as the court or arbitrator considers just
and equitable in all circumstances of the case. In assessing the amount of
compensation to be paid, account shall also be taken of whether there has
been any breach of contract by either party and whether the employee has
failed to take such steps as may be reasonable to mitigate his or her
losses.
13. We wish to confirm that We agree with Applicant that where an
arbitrator decides that compensation would be appropriate under the
circumstances, then no other amount may be awarded over and above
compensation. However, We differ in so far as its argument that factors
Page 65 of 283
Page 66 of 283
employee whether or not there has been any contravention of the terms of
any collective agreement or any law relating to employment by the
employer or the employee, the employer's ability to pay.
17. In view of this said above, Our attitude is that the learned Arbitrator
did not award both compensation and lost wages. Rather, what the
learned Arbitrator did was to consider lost earnings in line with the
dictates of Standard Lesotho Bank v `Nena and Another (supra), and
section 73(2) of the Labour Code Order (supra). The learned Arbitrators
approach is clearly reflected under paragraphs 7 to 10 of the arbitration
award, under the heading FORMULATION OF COMPENSATION. This
being the case, We find no irregularity in the way that the decision was
made. We wish to add that We are therefore not convinced in the
argument of Applicant that the learned Arbitrator awarded damages as
opposed to compensation.
18. We wish to comment that We do agree with Applicant that in making
Her decision, the learned Arbitrator relied on an overturned decision of
Pascalis Molapi v Metcash Ltd Maseru (supra), by the Labour Appeal Court
in Metcash Ltd Maseru v Pascalis Molapi (supra). However, the principle
that the learned Arbitrator relied upon from Pascalis Molapi v Metcash Ltd
Maseru (supra), remains the valid position of the law as shown in the
latter decision of the Labour Appeal Court in Standard Lesotho Bank v
`Nena and Another (supra).
19. In addition to that, We have perused both judgments of Pascalis
Molapi v Metcash Ltd Maseru (supra), and Metcash Ltd Maseru v Pascalis
Molapi (supra), and in particular the basis of the Labour Appeal Court in
setting aside the former decision of the Labour Court. The premise of the
finding was that reinstatement was the preferred remedy and that it
should have been granted. No comment was made by the Court over the
factors to consider in awarding compensation. In Our view, the principle
was accepted hence why it was applied by the Labour Appeal Court years
later in Standard Lesotho Bank v `Nena and Another (supra).
20. Applicant has asked that in the event that We find in favour of
Respondents, that we make an award to apportion the period of lost
earnings amongst the parties. This in Our view is a factual determination
which requires that evidence be led by both parties on the issue. Not only
is it an issue involving a factual determination but one that should have
been canvassed before the learned Arbitrator. It is Our view that
Applicant is attempting to make his case on the issue for the first time on
review. Applicant is in essence asking Us to usurp the powers of the
Learned Arbitrator by making the suggested determination, which
practice is not allowed.
Page 67 of 283
AWARD
We therefore make an award as follows:
a) That the review application is refused.
b) The award of the DDPR in referral E002/2006 remains in force.
c) The award is to be complied with within 30 days of issuance herewith.
d) No order as to costs.
THUS DONE AND DATED IN MASERU ON THIS 11th DAY OF FEBRUARY,
2015.
T. C. RAMOSEME
DEPUTY PRESIDENT (a.i)
LABOUR COURT OF LESOTHO
MRS. MOSEHLE
MISS LEBITSA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 3rd & 4th RESPONDENTS:
ADV. LOUBSER
ADV. MOTOARI
Page 68 of 283
LC/41/2013
1st APPLICANT
2nd APPLICANT
3rd APPLICANT
4th APPLICANT
5th APPLICANT
6th APPLICANT
7th APPLICANT
8th APPLICANT
9th APPLICANT
10th APPLICANT
AND
JIKELELE SERVICES (PTY) LTD
RESPONDENT
JUDGMENT
Claim for unfair dismissal for operational requirements. Applicants challenging
both the substantive and procedural aspects of their dismissals. Applicants
only leading evidence in respect of the procedure. Court finding merit in the
claim for procedural unfairness. Quantum of Applicants claims for
compensation not challenged. Court awarding Applicants their claims.
BACKGROUND OF THE DISPUTE
1. This is a claim for unfair dismissal based on operational requirements of
the employer. The brief background is that Applicants were all employees
of Respondent until their retrenchment, allegedly on account of the
closure of some part of the job.
Subsequent to their dismissals,
Applicants referred claims for unfair dismissal with the Directorate of
Dispute Prevention and Resolution (DDPR).
The matter was duly
conciliated but without success.
2. Pursuant to section 226(3) of the Labour Code (Amendment) Act 3 of 2000,
the matter was referred to this Court for adjudication, and was duly
opposed. On the date of hearing Respondent raised an argument that
Applicants had a duty to begin as they had alleged a dismissal that was
unfair. We refuted the argument on the ground that a party cannot be
required to prove the negative, but that he who makes the
bears the
evidentiary burden and must begin.
Page 69 of 283
Page 70 of 283
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
MS. M. MOSALA
ADV. H. TOLO
Page 71 of 283
LC/87/13
APPLICANT
AND
FORMOSA TEXTILE CO. (PTY) LTD
RESPONDENT
JUDGMENT
Claims for unfair dismissal allegedly for participating in a strike. Court mero
motu raising a point in limine on its jurisdiction over the Applicants claim.
Court finding that the circumstances of Applicant are not within section 226(1)
but are infact within section 226(2) of the Labour Code Amendment Act 3 of
2000. Court declining jurisdiction and remitting the matter to the DDPR for
arbitration, with specific terms. No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is a claim for unfair dismissal allegedly for participation in a strike.
The brief background is that Applicant took part in a strike at the
Respondent place of employment. It is alleged that during the strike he
engaged into acts of intimidation against his fellow employees. He was
charged, found guilty and dismissed.
2. Unhappy with his dismissal, Applicant referred a claim for unfair
dismissal with the Directorate of Dispute Prevention and Resolution
(DDPR). The matter was duly conciliated upon at the end of which it
remained unresolved. The learned Arbitrator, upon the advice of parties
that the dismissal was for strike related misconduct, issued a certificate
of non-resolution and referred the matter for adjudication by this Court.
3. At the commencement of the proceedings, and having earlier
conscientised parties, We mero motu raised a point in limine regarding this
Courts jurisdiction over the Applicants claim. Applicants claim is that
he was dismissed for intimidating his fellow employees during a strike
action. He specifically challenges both the substantive and procedural
fairness of his dismissal. We were addressed on the point in limine and
Our judgment follows.
SUBMISSIONS AND ANALYSIS
4. Applicants case is that this Court has jurisdiction over his claim in terms
of section 226(1)(c)(1) of the Labour Code (Amendment) Act 3 of 2000. He
states that he was dismissed for his role in the strike action. He
Page 72 of 283
submitted that participation means taking part or a role, and that his
alleged role of intimidation falls within the scope of section 226(1)(c)(1).
5. He specifically submitted that it is alleged that he conducted himself
contrary to the strike rules. This being the case, the conduct he is
charged with relates to a strike action and that as such the dispute falls
within the exclusive jurisdiction of the DDPR. He added that the Rule in
issue is Rule 10 of the Strike Rules, and it provides that striking
employees shall not intimidate the employees who are not striking.
6. When asked about the status of the strike rules vis--vis the terms and
conditions of employment, Applicant conceded that strike rules are part
of the terms and conditions of employment of the striking employees and
that they become binding on them. It was added on behalf of Applicant
that in taking a role in a strike with rules, Applicant was bound by those
rules.
7. Respondent answered that strikes are either lawful or unlawful and that
where an employee has taken part in an unlawful strike, his/her
dismissal is fair, while it is unfair if the strike in which he/she
participated was lawful. It was argued that this is the scope of section
226(1)(c) and no more.
8. It was further argued that the word participation relates to taking part in
a strike, as Applicant has stated and not what he did in the act of taking
part in the strike. It was submitted that in casu, Applicant is not
complaining about being dismissed for taking part in a strike action but
for his misconduct during the strike and that this is not contemplated by
section 226(1)(c)(1).
9. It was argued that any conduct against the strike rules amounts to
misconduct, and that it therefore entitles the employer to take action. It
was added that for the conduct of Applicant to constitute misconduct, it
did not need to be contained in the rules of employer. It was prayed that
this Court dismiss the Applicants claim for want of jurisdiction.
10. The provisions of section 226(1)(c)(1) of the Labour Code (Amendment)
Act (supra) are as follows:
(1) The Labour Court has the exclusive jurisdiction to resolve the following
disputes:
(a)
(b)
(c)
an unfair dismissal if the reason for the dismissal is
(i) for participation in a strike;
11. Central to the determination of this point in limine is what subsection
(c)(i), that is, for participation in a strike, means. In essence, We need to
first interpret the said subsection if We are to determine the jurisdictional
authority of this Court over Applicants claim.
Page 73 of 283
12. In Our view, the interpretation given by both parties is correct, at least
to the extent that it relates to taking part or playing a role in a strike.
This therefore means that We only have a jurisdiction where an employee
has been dismissed for taking part or playing a role in a strike. In that
type of dispute the issue to be determined is if it was proper for an
employee to partake in that strike.
13. As a result, where an employee is dismissed for acts done during a
strike, the circumstances of the dispute no longer satisfy what is
anticipated by section 226(1)(c)(1). This is the case in casu, as Applicant
is not complaining about his dismissal for taking part in a strike, but acts
committed during a strike.
This clearly not in line with section
226(1)(c)(i).
14. In Our view, if the legislature had intended for the scope of section
226(1)(c)(i) to include conduct during strike action, the statute would
have expressly stated so. That is, it would have provided not only for
participation in a strike but also for other reasons related to a strike. As
a result by expressly mentioning for participation in a strike, the
legislator expressly excluded other reasons other than participation in a
strike (see Lead Melding Company vs. Richardson 1962 BLLR 341;
Hlatswayo and Others vs. Hein (LCC31/96) [1997] ZALCC).
15. We are fortified in Our finding by the fact that where the legislature
intended to expand that scope of the provisions of the law, in the same
section, it expressly said so. Evident of this is section 226(1)(c)(iii) which
reads as thus:
(c) an unfair dismissal if the reason for the dismissal is
(i)
(ii)
(iii) related to the operational requirements of the employer.
16. Clearly in the above provisions, the legislature did not intend to limit
the scope of operational reasons to either those economic, technological
or structural, but to leave that open to any operational requirements that
may compel an employer to terminate an employee.
17. Secondly, We are fortified in Our view by the provision of section
226(2)(d) which reads as thus:
(2)
The following disputes shall be resolved by arbitration
(a)
(b)
(c)
(d)
an unfair dismissal for any reason other than a reason referred in
subsection (1)(c).
18. Clearly, any reason other than one based on participation in a strike
or any other reason under subsection 1(c) does not fall within the
Page 74 of 283
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. KOTO
ADV. RAFONEKE
Page 75 of 283
LC/43/2013
1st APPLICANT
2nd APPLICANT
3rd APPLICANT
4th APPLICANT
5th APPLICANT
6th APPLICANT
7th APPLICANT
8th APPLICANT
9th APPLICANT
10th APPLICANT
11th APPLICANT
12th APPLICANT
13th APPLICANT
14th APPLICANT
15th APPLICANT
16th APPLICANT
17th APPLICANT
18th APPLICANT
19th APPLICANT
20th APPLICANT
21st APPLICANT
22nd APPLICANT
23rd APPLICANT
24th APPLICANT
25th APPLICANT
AND
TAI YUANG GARMENTS (PTY) LTD
RESPONDENT
JUDGMENT
Claims for unfair dismissal for operational reasons. Applicants claiming that
they procedure for dismissal was not followed as they were not consulted
prior to the actual retrenchments. Further that there was no valid reason for
their dismissals as their dismissal was a punishment for refusing to go on a
lay. Court finding in favour of Applicants. Court ordering the reinstatement of
Applicants in terms of section 73 of the Labour Code Order 24 of 1992. No
order as to costs being made.
Page 76 of 283
Page 77 of 283
they aligned themselves with the evidence of the two witnesses as far as it
related to them.
7. Puseletso Moshoeshoe testified that he is the Human Resources Manager
of Respondent company. He has been so for over 8 years. He testified
that they informed FAWU that they anticipated a lay off in September
2012 through annexure FAWU 8. Notwithstanding the letter, FAWU
failed to pitch up. They had written a similar letter to NUTEX, which did
show up to discuss the issue. Out of the discussions was an agreement
of how the process would be undertaken. The agreement was marked
FAWU 6.
8. In effecting the agreement with NUTEX, another document was designed
by Respondent. The said document was marked FAMU 7. The said
document stated that if an employee did not accept to be laid off, they
would be retrenched. It was added that some employees accepted to be
laid off, while other refused and these were retrenched.
9. During cross examination, witness testified that the letter marked FAMU
2 did not invite FAMU to discuss the anticipated lay off. Further that all
the documents tendered by witness, that is, FAWU 2, FAWU 6 and FAWU
7, did not give an option between a lay off and retrenchment. It was
added that the decision to retrench was made by Respondent and that
FAWU was not consulted.
10. The second witness, Matumelo Ngeephe testified that she was a union
official of FAWU. She left the union because she disagreed with its stance
that its members should not accept a lay off. She wanted to accept the
lay off and that after doing so she left the union. She stated that it had
been explained to all employees that those who did not accept a lay off
would be given their terminal benefits, at the time of signing FAWU 7.
11. Malebohang Mei testified that she was a supervisor at the time in
issue. She stated that on the day in issue, they were called to a meeting
and given forms to give to employee to show that they accepted to be laid
off. Some of the employees accepted to be laid off while others did not.
For those who signed she took their signed forms back to the manager
and referred those who did not sign to the manager.
12. Mamorake Letele testified that she was Secretary at the Human
Resources Office. On the day in question, all team leaders were called to
the Human Resources Office where they were told to tell employees that
they would be laid off. The supervisors were given forms to give to
employees to sign. Some employees signed while some did not. On the
same day, while moving on the factory floor, she heard one Maleshoane
tell one Moqomo that FAWU had told them not to accept the layoff.
13. During cross examination, witness testified that no letter was sent to
FAWU to tell them that the layoff was in place. Further that FAWU was
Page 78 of 283
not consulted before the employees were given an option to take a lay off
or be retrenched. Furthermore that the decision to retrench was the sole
decision of the Respondent management.
14. Thandiwe Labane, on behalf of Applicants, testified that on the day in
question, they were approached by a supervisor with a document and she
told them to sign it. When they refused she referred them to the Human
Resources Office to see Mr. Moshoeshoe (1st witness for Respondent).
They were then told by Mr. Moshoeshoe to come on Monday at 16.00 and
then postponed to Tuesday at 16.00. When they came, they were given
their terminal monies and told to sign a document. They were thereafter
told that they had been terminated.
15. Mamohau Mokhethi testified that one Malebohang Mei (Respondents
3rd witness) came to them with a document and told them to sign. They
refused and were referred to the Human Resources Office. They were told
at that office to come on Tuesday the following week to get their money.
They came and were indeed given money and documents to sign. They
were then told that they had been terminated.
16. In law, there are three circumstances under which the termination of
employment may be legally made.
These are for misconduct, for
incapacity and employees operational reasons. In all these instances of
dismissals, there are certain procedures that must be followed by the
employer and these are prescribed by the Labour Code (Codes of Good
Practice) Notice of 2003.
They are classified into substantive and
procedural requirements.
17. Of relevance to the issue at hand, an employer must, in terms of
section of the Codes of Good Practice (supra), meet with the employees to
agree on the following, when he anticipates a retrenchment:
(a) alternatives to dismissal such as transfer to other jobs, lay off;
(b) Criteria for selecting employees for dismissal such as last-in-first-out
(LIFO), subject to special skills and affirmative action.
(c) Steps to minimize the dismissals such as voluntary retrenchment
packages, early retirement etc;
(d) Conditions on which dismissals take place such as the timing,
severance pay, etc.
(e) Steps to avoid the adverse effects of the dismissals such as time off to
seek work, social plans etc.
This process is commonly referred to as the consultation process.
18. In casu, evidence was shown that this was not done in the case of
Applicants as neither them nor their union FAWU was ever consulted on
the issue. Rather they were just approached on the day in issue and
rushed into deciding whether to take a lay off or not. The management of
Respondent just unilaterally choose to take the route taken. This is clear
from not only the evidence of Applicants, but also from the evidence of
Page 79 of 283
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENT:
ADV. RASEKOAI
ADV. NONO
Page 80 of 283
LC/51/2012
1st APPLICANT
2nd APPLICANT
3rd APPLICANT
4th APPLICANT
5th APPLICANT
6th APPLICANT
7th APPLICANT
8th APPLICANT
9th APPLICANT
10th APPLICANT
11th APPLICANT
12th APPLICANT
13th APPLICANT
AND
TZICC CLOTHING MANUFACTURER
(PTY) LTD
RESPONDENT
JUDGMENT
Claims for discrimination in employment. Respondent failing to attend
hearing. Court proceedings on the basis of the unchallenged evidence of
Applicants. Court finding in favour of Applicants and directing Respondent to
make payment to Respondents in terms of section 202(2) of the Labour Code
Order 24 of 1992. No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. These are claims for discrimination in terms of section 196 (2) of the
Labour code Order 24 of 1992. The brief background of the matter is that
Applicants had referred claims for discrimination with the DDPR. The
matter was duly conciliated upon and conciliation having failed the
claims were referred to this Court. In the period between the 6th and 20th
June 2013, the matter was heard and finalised, and judgment later
issued. In terms of the said judgment, the Applicants claims were
dismissed. It had been the finding of the Court that, whereas Applicants
had referred claims for discrimination in terms of section 196(2), they had
failed to establish a case for discrimination as contemplated by the same
section.
Page 81 of 283
Page 82 of 283
Overtime calculation
Monthly salary X overtime X quarterly rate
Monthly hours
M980.00 X 80 hours X 1.25
195 hours
=M502.56
Total awarded amounts for each Applicant are M904.61(M402.05+M502.56),
per the above calculations.
AWARD
We therefore make an award as follows:
a) That each Applicant be paid M904.61 each.
b) The said amount be paid within 30 days of issuance herewith.
c) No order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF MAY, 2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MRS. THAKALEKOALA
MRS. MOSEHLE
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENT:
ADV. RAMPAI
NO ATTENDANCE
Page 83 of 283
LC/34/2013
APPLICANT
AND
SUN INTERNATIONAL (PTY) LTD
THE AREA MANAGER, SUN
INTERNATIONAL (PTY) LTD
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for committal for contempt of court. Respondents raising three
points in limine. Court finding merit in the first point raised and dismissing the
application on its strength alone. No order as to costs being made. Principles
considered: Jurisdiction of the Labour Court to enforce DDPR awards.
BACKGROUND OF THE DISPUTE
1. This is an application for committal for contempt of court. Specifically,
applicant asks that Respondents show cause, if any, why,
The 2nd respondent shall not be committed and punished for contempt for
disobeying or unlawfully refusing to carry out or be bound by the DDPR
award dated the 25th August 2010 directing the 1st respondent to comply
with the substantive agreement entered into between the applicant and the
1st respondent;
2. The brief background of the matter is that sometime in 2010, Applicant
referred a claim for breach of a collective agreement with the Directorate
of Dispute Prevention and Resolution (DDPR). On or around the 25th
August 2010, an award was issued wherein the 2nd Respondent was
found to have been in breach of the said agreement. It was then ordered
to comply with same from the date that it came into effect.
3. Subsequent to the issuance of the said award, Applicant initiated
enforcement proceedings under LC/ENF/94/2013. The said application
was moved before Mrs. F. Khabo, the Deputy President of the Labour
Court of Lesotho, as she then was. In the process of enforcing the award
of the DDPR, parties entered into a settlement agreement in respect of the
award that was being enforced.
4. Later on, Applicant approached this Court to proceed with the
enforcement of the arbitration award. The result of the enforcement was
Page 84 of 283
the minute of the 15th April 2013. In terms of that minuting, parties were
ordered to approach the DDPR for a relief, after this Court had
determined that the dispute now concerned the interpretation of the
settlement agreement earlier concluded.
5. Following was the initiation of the current proceedings wherein Applicant
is asking for the committal and punishment of the 1st Respondent for
contempt. In answer to the application, 1st Respondent raised three
points in limine. We were duly addressed by both parties and having
heard them, Our judgment follows.
SUBMISSIONS AND ANALYSIS
Relief sought
6. Respondent submitted that there is no procedure in the law of Lesotho
that allows for the relief sought to be granted. It was argued that the
powers and jurisdiction of this Court are provided under section 8 of the
Labour Code (Amendment) Act 3 of 2000. It was submitted that in terms
of that section, this Court is not vested with the jurisdiction to grant the
relief sought.
7. It was submitted that whereas the Applicant has approached this Court
by way of contempt, that is an improper step. It was argued that
contempt proceedings are governed by section 24(2) (J) of the Labour
Code Order 24 of 1992, as amended by section 8 of the Labour Code
(Amendment) Act (supra). It was submitted that section 24(2) (J) gives this
Court the power to:
(i) to commit and punish for contempt any person who disobeys or
unlawfully refuses to carry out or to be bound by an order made against
him or her by the court under the Code;
8. It was submitted that from the provisions of section 24(2) (J), contempt
can only be made if it is against an order of this Court and not an award
of the DDPR. It was submitted that the proper procedure would have
been an enforcement in terms of section 34 of the Labour Code Order
(supra), as Applicant had initially done. It was argued that the award had
directed that payment be made with specific instruction, hence the
suggestion that the section 34 procedure would have been proper.
9. Respondent answered that section 228 E (5) of the Labour Code
(Amendment) Act (supra), provides that an award shall be equal to an
order of this Court. It was argued that as a result, the procedure under
section 24(2) (J) is proper. It was added that the Court of Appeal in
Lerotholi Polytechnic & another v Blandina Lisene C of A (CIV) 25/2009,
endorses this approach. Specific reference was made to paragraph 7
thereof.
10. We wish to note three crucial issues for purposes of the determination
of this point in limine. Firstly, it is accurate that contempt proceedings
are made in terms of section 24(2) (J) of the Labour Code (Amendment) Act
Page 85 of 283
Page 86 of 283
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENTS:
ADV. NONO
DR. VAN ZYL
Page 87 of 283
LC/36/2013
APPLICANT
AND
GOOD TRADING SUPERMARKET
(PTY) LTD
DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Claim for unfair dismissal for operational reasons. 1st Respondent raising a
point in limine that the matter has been improperly referred. Applicant failing
to seek the condonation of the irregularity. Court finding that it has no power
to grant the remedy not sought. Court finding in favour of 1st Respondent that
the matter has been improperly referred and dismissing same. Applicant
given the liberty to reinstitute the matter properly if he so wished, with specific
terms. No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is a claim for unfair dismissal for operational reasons. The brief
background is that Applicant was an employee of 1st Respondent until
she was dismissed. Unhappy with her dismissal, she referred a claim for
unfair dismissal with the Directorate of Dispute Prevention and
Resolution (DDPR) for conciliation. However, conciliation failed to resolve
the matter and it was referred to this Court for adjudication.
2. It was then heard unopposed and in default of the 1st Respondent on the
14th November 2013. In terms of the default judgment, 1st Respondent
was to reinstate Applicant to her former position without loss of
remuneration and other entitlements, if it was not for the dismissal. The
said judgment was thereafter rescinded, hence the current proceedings.
3. In its answer to the main claim, 1st Respondent raised a point in limine
that Applicant had adopted an irregular procedure in initiating these
proceedings. Specifically 1st Respondent claimed Applicant had acted in
breach of Rule 3 of the Rules of this Court, in that she had approached
the Court by way of Notice of Motion as opposed to by way of an
Originating Application. 1st Respondent prayed that the matter be
dismissed as being improperly referred.
Page 88 of 283
4. We wish to note that the same argument was mero motu raised by this
Court when it heard the matter in default of 1st Respondent. Then,
Applicant had prayed for condonation of the breach of the Rules, which
was granted. With the rescission of that judgment 1st Respondents
attitude was that that point had now become an issue again. Both
parties were heard and having heard them, Our judgment follows.
SUBMISSIONS AND ANALYSIS
5. 1st Respondents case was that Applicant had acted in breach of Rule 3 of
the Rules of this Court. Further that although the breach was earlier
condoned, the rescission of that judgment has meant that the
condonation has been rescinded as well. It was submitted in addition
that Applicant ought to have sought amendment of its motion to comply
with Rule 3. It was said that Applicant had ample opportunity to do so,
when the issue first became apparent and after 1st Respondent had filed
its answer, wherein this issue was raised.
6. It was submitted that without the amendment or any other steps to cure
the irregularity, the base of the matter is wrong and that this Court
cannot and should not proceed with the matter under the circumstances.
It was argued that this matter warrants dismissal.
7. Applicant answered that had this issue been raised before the default
judgment, they would have addressed it. It was added that given the
steps that took place in the default judgment process, the issue is
nothing but academic. Applicant was asked if he sought the condonation
for breach of the Rules, should the court uphold 1st Respondents
argument. Applicant did not address the issue. Applicant further argued
that the answer filed on behalf of 1st Respondent was out of time in that it
was filed long after the Notice of Motion had been served upon
Respondents.
8. 1st Respondent replied that the issue of an irregular step is not academic
as the judgment condoning same was set aside. Further that the answer
is not out of time as it was filed immediately after the rescission of the
default judgment was granted, which period was within 14 days of
issuance of that order. It was however conceded that it was over 14 days
from service of the Notice of Motion.
9. We wish to confirm that in terms of Rule 3:
Proceedings for determination of any matter by the court shall be
instituted by any interested person or persons presenting or delivering by
registered post, to the Registrar an originating application which shall be in
writing in or substantially in accordance with Form LC1 contained in Part A
of the schedule....
10. Clearly, the matter before Us is not by way of an Originating
Application but a Notice of Motion. It is therefore undoubtedly in breach
of the Rule in question. However, the Rules of this Court provide that a
Page 89 of 283
party may apply for condonation of the breach of the Rules of this Court.
This is clear from Rule 27 (2) which is captured as follows:
Notwithstanding anything contained in these Rules, the court may in its
discretion, in the interest of justice, upon written application, or oral
application at any hearing, or of its own motion, condone any failure to
observe the provisions of these Rules.
11. In casu, Applicant claims that the issue of an improper procedure or
breach has been finalised. We disagree in that this issue was finalised in
the initial judgment which was rescinded. With the rescission, the issue
resurfaced and had to be addressed again, more so because initially there
was no presentation made on behalf of 1st Respondent. It is then
inaccurate for Applicant to have suggested that the issue is now
academic. We therefore, find in favour of 1st Respondent that applicant
has acted irregularly.
12. We asked Applicant if she wished to have the procedure condoned in
the event We agreed and/or found in favour of 1st Respondent. Despite
this opportunity, Applicant failed to address the issue. That being the
case, We cannot grant what was not sought particularly where We availed
an opportunity for the condonation request to be made. Supportive of
Our conclusion is the view of the Court in Phetang Mpota v Standard
Bank LAC/CIV/A/06/2008.
13. At paragraph 22 of the typed judgment, the learned Dr. K. E. Mosito
made the following remarks,
The Court of Appeal and this court have on several occasions deprecated
the practice in terms of which the courts grant order that nobody has asked
for. In several of its decisions the Court of Appeal has deprecated the
practice of granting orders which are not sought for by the litigants.
14. This being the case the procedure adopted remains improper and We
cannot proceed to determine this matter on that wrong base. Our attitude
finds support in the case of Lepolesa and others v Sun International of
Lesotho (Pty) Ltd t/a Maseru Sun and Lesotho Sun (Pty) Ltd [2011] LSLAC
4. In deprecating the idea of proceeding to hear a matter in ignorance of
an apparent irregularity, the Court held that,
... the result would be the decision premised on an incorrect application of
the law. That would infringe the principle of legality.
Page 90 of 283
AWARD
We therefore make the following award:
a) That the matter is dismissed as being improperly instituted;
b) Applicant is at liberty to reinstitute the matter in terms of the Rules of
this Court;
c) That this order be complied with within 30 days of issuance of this
judgment.
d) No order as to cost.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF MAY 2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MISS LEBITSA
MRS. MOSEHLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
LETSIE
ADV. LEPHUTING
Page 91 of 283
LC/ENF/63/2013
APPLICANT
AND
THAPELO KHITANE
RESPONDENT
JUDGMENT
Application for stay of enforcing pending finalisation of a claim before another
court. Applicant claiming fear of inability to recover its loss from Respondent
as he has no money. Court finding that it would be improper to stay
enforcement pending a matter in respect of which it has not control. Court
further finding that source of fear is not original as it arises from the
Respondent answer and therefore an afterthought. Court not finding merit in
Applicants claim and dismissing same. No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for stay of enforcement of the DDPR award in
referral A0698/2012. In terms of the arbitral award, Applicant had been
ordered to pay Respondent the sum of M78,692.31, as severance
payment.
2. The brief background of the matter is that Respondent was an employee
of Applicant until his contract of employment terminated by resignation.
When Applicant defaulted on payment of same, Respondent referred a
claim with the Directorate of Dispute Prevention and Resolution (DDPR)
for payment. An award was issued on the 23rd January 2013 in favour of
Respondent, as earlier indicated. When Applicant defaulted against the
said award, Respondent initiated enforcement proceedings with this
Court.
3. Incidentally, Applicant had also initiated civil proceedings before the
Bloemfontein High Court, in the Republic of South Africa, allegedly
through its parent company MSC Logistics (Pty) Ltd, against Respondent
herein. In this claim, Applicant had claimed an amount of M679,447.56
against Respondent, wherein it obtained judgment by default. Unhappy
with the default award, Respondent lodged a rescission application to
have same set aside. By order of Mrs. Khabo, the President of this Court,
the enforcement proceedings were stayed pending finalisation of the said
rescission application, before the Bloemfontein High Court.
Page 92 of 283
4. Eventually the rescission before the Bloemfontein High Court was heard
and finalised in favour of Respondent herein. Armed with the said
judgment, Respondent caused summons to be issued against Applicant
herein, for enforcement of the DDPR awarded amount. It was in reaction
to the said summons that the current applicant was made. Having heard
the arguments of parties, Our judgment follows.
SUBMISSIONS AND ANALYSIS
5. Applicants case was that whereas they have initiated proceedings against
Respondent in the Bloemfontein High Court, the said proceedings have
since been stayed sine die. They are therefore asking this Court to stay
the enforcement proceedings as security in the event that they win the
case in the Bloemfontein High Court.
6. They submitted that they are in fear that Respondent may not be able to
pay them the amount that they claim before the Bloemfontein High Court.
They added that should they win, with these proceedings stayed, they will
at least be able to recover an amount in the sum awarded to Respondent
by the DDPR, rather than not being able to recover anything at all.
7. They further submitted that their fear is borne by the averments of
Respondent in answer to this application, specifically at paragraph 3.8 of
the Respondents answer, where he has averred that he has no money.
They added in the event that they lose in the Bloemfontein matter, they
will immediately comply with the DDPR award, as the awarded money is
readily available.
8. It was further submitted that in the event that Applicant obtains an order
in the Bloemfontein High Court in its favour, it will be able to invoke a set
off without recourse to the procedures of this Court or any other court, as
a set off is automatic. They will simply withhold of the awarded amount
and set it off against their victory amount before the Bloemfontein High
Court. The Court was referred to the case of the Great North Falls v RAS
1972 (4) SA 7, for the principle of a set off.
9. When asked about the principle in the case of Astoria Bakery Lesotho
(Pty) Ltd v Thabiso Mokhesuoe LC/59/2004, Applicant submitted that the
circumstances of the two cases were different. It was argued that in casu,
Respondent has no money and that Applicant is merely asking for
security to avoid prejudice on its part, which condition would not bring
prejudice to Respondent. It was argued that there would be no prejudice
as Applicant has the awarded amount, unlike Respondent who has no
money.
10. Respondent answered that the claimed fear is an afterthought as it
arises from the answer to the Originating Application, and in particular
from paragraph 3.8, as Applicant has argued. It added in any event at
paragraph 3.8, Respondent does not say he does not have money, but
rather that he was unable to go on appeal as he had no money then.
Page 93 of 283
11. Respondent further answered that he agreed with the principle in the
case of Astoria Bakery Lesotho (Pty) Ltd v Thabiso Mokhesuoe (supra), that
this Court cannot grant a stay on the basis of proceedings before another
court, in respect of which this Court has no control, as that would render
the award held by Respondent meaningless.
12. Regarding the claim that a set off is automatic and that no recourse to
the procedures of any court is necessary, Respondent argued on the
contrary. In fact, Respondent submitted that a set off is only done
through the procedures of Court as it would otherwise be self-help, which
practice is highly shunned by courts of law. It was prayed that this
application be refused and that Applicant be ordered to comply with the
DDPR award immediately, particularly given their submission that the
awarded amount is readily available. It was added that severance pay is
a right of Respondent and it cannot be withheld without due course. The
Court was referred to the case of Selloane Mahamo v Nedbank Lesotho
Limited LAC/CIV/04/2011.
13. About MSC Logistics (Pty) Ltd being the parent company to Applicant,
it was denied as being untruthful. It was submitted that Applicant
Company is a company registered in Lesotho and in terms of the laws of
Lesotho, as Applicant has shown in the Originating Application, while
MSC Logistics is a South African Company which is headed in Kwazulu
Natal, Republic of South Africa. It was added that Applicant has not even
alleged in its Originating Application this claimed relationship of a
holding and subsidiary company.
14. In reply, Applicant submitted that MSC Logistics is the holding
company to Applicant Company. Further that this was accepted by both
parties before the DDPR in the proceedings in referral A0698/12, which is
the award subject of these proceedings. The Court was referred to
paragraph 8 of the arbitration award.
15. The posting of a security before this Court is governed by section 37 of
the Labour Code Order 24 of 1992. The provisions of this section are as
follows,
When it appears to the President of the Court that an employer against
whom proceedings have been instituted under the provisions of the Code is
likely to abscond to avoid payment of wages or other sums owed to any of
his or her employees, the President may order such employer to post a
bond until the hearing of the proceedings or until earlier payment of such
wages or sums has been made in full.
16. Clearly from the provisions of section 37 above, the circumstances
under which security may be made are very limited. To be specific, they
are limited to an employer who is likely to abscond and are dependent on
there being pending proceedings instituted in terms of the Code. In casu,
Applicant has not instituted proceedings in terms of the Code. Secondly,
the posting is not in respect of the employer but the employee.
Page 94 of 283
Page 95 of 283
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. LOUBSER
ADV. MOLAPO
Page 96 of 283
LC/REV/39/2012
A0421/2008
APPLICANTS
AND
LESOTHO FLOUR MILLS LTD
DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for the review of the arbitration award. Condonation application
for late referral of review within the review application. 1st Respondent raising
a point in limine that it is improper to include a condonation application in the
main review. Court not finding merit in claim and dismissing the point in
limine. Court further not finding merit in the condonation application and
dismissing same. Court also dismissing the review application for want of
jurisdiction. No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A0421/2008. The brief background of the matter is that Applicants were
employees of the 1st Respondent until their termination. They referred a
dispute with the Directorate of Dispute Prevention and Resolution (DDPR)
for breach of contract. After several sittings before the DDPR, Applicants
were ordered to file an application for condonation for the late referral of
their claims.
2. The condonation application was duly filed and argued. Thereafter, the
learned Arbitrator issued an award wherein He dismissed the said
application. Unhappy with the said award, Applicants initiated the
current review proceedings. They had also applied for condonation for
the late filing of the application, in the review application.
3. In answer, 1st Respondent raised a point in limine in terms of which he
challenged the propriety of applying for a condonation within the review
application. He specifically argued that the two applications must be
separated. The argument was strongly opposed. We, at the request of
parties, allowed them to argue the matter holistically. Having heard
them, Our judgment follows.
Page 97 of 283
Page 98 of 283
Page 99 of 283
COSTS
20. 1st Respondent asked that the matter be dismissed with costs, on the
ground that the application is frivolous. It was submitted in amplification
that this is an old matter which is affecting Respondent financially.
Applicants answered that they have not been frivolous in any way in as
much as 1st Respondent has failed to show how. It was submitted that
Applicants are merely exercising their legal right to seek redress against
errors committed by the learned Arbitrator. They prayed that a request
for costs be dismissed.
21. We stated before that costs are awarded only in extreme
circumstances of either frivolity or vexations conduct or both. Further
that these two must be shown and not just alleged. 1st Respondent has
barely alleged frivolity on the part of Applicants without illustrating how
this is so. We have more than reiterated the principle on bare allegations
and see not need to re-reiterate same. Even the substantiation given
does not demonstrate frivolity, but a mere claim of a prolonged matter.
We therefore agree with Applicants that they have not been shown to have
been frivolous.
AWARD
We therefore make an award as follows:
a) That condonation is refused,
b) The review application is dismissed for want of jurisdiction, and
c) No order as to costs is made.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF MAY, 2015
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MOTHEPU
MR. MATELA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENTS:
ADV. THELISI
ADV. MABULA
LC/REV/162/13
A0660/2013
APPLICANT
AND
SOAI LETSIE
RESPONDENT
JUDGMENT
Application for the review of the arbitration award. 1st Respondent raising a
point in limine of non-joinder. Court finding that the requirements for a plea of
non-joinder were not met and dismissing the point in limine. In the merits,
four grounds of review having been raised, one relating to misapplication of
the law and the other three relating to ignorance of evidence. Court finding
that the law was properly applied but that the evidence of a witness was
ignored. Court further finding that the ignored evidence was material and
granting the review. Matter being remitted to the DDPR for a hearing de novo
before a different Arbitrator, with specific terms. No order as to costs being
made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A0660/2013. Five grounds of review had been raised on behalf of
Applicant but only four were argued. The second, fourth and fifth
grounds were argued together, while the first one was argued separately.
2. The brief background of the matter is that 1st Respondent was an
employee of Applicant until his dismissal for misconduct. He was
dismissed for use of profane and abusive language towards his fellow
employee. Unhappy with his dismissal, 1st Respondent referred an unfair
dismissal claim with the Directorate of Dispute Prevention and Resolution
(DDPR). An award was thereafter issued wherein 1st Respondent was to
be reinstated to his employment, in terms of section 73 of the Labour
Code Order 24 of 1992. Equally unhappy with the said award, Applicant
initiated the current review proceedings.
3. In reaction to the review, 1st Respondent raised a point in limine, to the
effect that the Applicant had failed to join the learned Arbitrator who
made the decision, as a Respondent party. He argued that this was an
irregularity in the procedure of the Court, which irregularity warranted
the dismissal of this review application. We had then directed parties to
address Us holistically on the matter, with the rider that We would only
consider the merits, if We did not uphold the point in limine. Having
heard parties, Our judgment follows.
SUBMISSIONS AND ANALYSIS
Point in limine non joinder
4. 1st Respondent submitted that in terms of the mandatory provisions of
both Rule 16 and 17 of the Labour Appeal Court Rules of 2002, also the
Rules of this Court in review proceedings, the Notice of Motion which
shall require the decision maker to show cause why a review shall not be
granted, must be served upon the decision maker. It was argued that
decision maker contemplated by these sections is the learned Arbitrator
who made the decision, and not the DDPR as an institution.
5. Respondent answered that the decision maker is the DDPR as an
institution and not an individual arbitrator. It was argued that the
individual arbitrator in making his/her conclusion, does so in an official
capacity so that their actions are those of the DDPR. It was submitted
that in view of this said, joining the learned Arbitrator would be for
convenience as no harm would occasion against them, should the award
be set aside.
6. It was argued that the principle of non-joinder requires that a party be
joined if the decision to be made would affect both their direct and
substantial interests, or if the order given cannot be carried into effect
without affecting their rights. It was argued that in casu, the test is not
satisfied as the learned Arbitrator neither has direct or substantial
interests and will not be prejudiced by the decision of this Court should
the review be granted.
7. The Court was referred to the book by Herbstein & van Winsen, the
Practice of the Supreme Court of South Africa, 4 th ed., Juta & Co., 1997, at
page 170. Further reference was made to the case of Nafisa Moosa &
another v Directorate of Dispute Prevention and Resolution & another
LC/REV/570/2006, in support of the 1st Respondent argument.
8. We do confirm that for a plea of non-joinder to succeed, a party that is
sought to be joined must have both a direct and substantial interest in
the matter. This is clear from the extract at page 170, of Herbstein and
Van Winsens book. This is recorded as thus:
A direct and substantial interest in any order that the court might make in
proceedings or if such an order cannot be sustained or carried into effect
without prejudicing that party....
9. Further, still on the same principle in the case of I. Kuper (Lesotho) (Pty)
Ltd v Benjamin Maphate & others C of A (CIV) 40/2010, the Court of
Appeal of Lesotho held that, at paragraph 7,
In my view the learned judge erred in upholding the point of non-joinder.
None of the parties mentioned by the first respondent had a direct and
15. Applicant has referred Us to the case of CGM Industrial (Pty) Ltd v
Molieleng & another (supra). In this case, the principle of inconsistency is
explained as follows,
consistency is a principle of fairness. Where two employees have
committed the same misconduct and there is nothing to distinguish them,
they should be generally dealt with in the same way.
16. Clearly, how the principle is to be applied depends on the factual
conclusion that has been made or that which is to be made. Where it is
factually concluded that the situation and/or circumstances of employees
were similar, the principle will apply and vice versa. We therefore find
that in the light of the factual conclusion made, the learned Arbitrator
properly applied the principle of consistency/inconsistency.
17. We do concede that evidence was given at pages 11 and 12 of the
record of proceedings before the DDPR, to demonstrate that there was
consistency in meting out punishment. Further that, at page 6 of
paragraph 13 of the arbitration award, the leaned Arbitrator notes that
Applicant was inconsistent. This evidence shows something else other
than the misapplication of the principle of inconsistency or consistency.
18. We have considered both exhibits 1 and 3. These exhibits show that
the charges of the two employees in issue were not entirely the same. For
1st Respondent, the charge was one of profane and abusive language
while for the other employee, there were other charges in addition. While
this does not similarly demonstrate misapplication of the principle of
consistency/inconsistency, it relates to something else. This leads us to
conclude that not only was the principle properly applied, but that
Applicant is merely unhappy with the conclusion made, a cry that cannot
be cured by way of a review but appeal.
19. Our attitude is fortified by the authority of J. D. Trading (Pty) Ltd t/a
Supreme Furnishers v M. Monoko & others LAC/REV/39/2004, where he
Court makes a distinction between a review and an appeal and the
consequential remedies in respect of each. This is reflected in the
following,
The reason for bringing proceedings on review is the same as the reason
for taking them on appeal, namely to set aside a judgment already given.
Where the reason for wanting to set aside a judgment is that the court
came to the wrong conclusion on the facts or the law, the appropriate
remedy is by way of an appeal. where on the other hand, the real
grievance is against the method of the trial, it is proper to bring the case for
review.
20. The second, fourth and fifth grounds, which were argued together,
were that the learned Arbitrator erred by ignoring the evidence of
Applicants key witness by the names of Rethabile Tlebere. It was argued
that this witness gave evidence that showed that the Applicant had been
consistent in meting out punishment in situations that were similar
before. The witness was said to have further testified that the case of 1st
Respondent was different as the circumstances were different.
21. It was argued that Tlebere had testified that the charges were not
entirely the same, that the other employee accepted guilt and asked for
mercy while Applicant denied guilt only to be found so after a hearing.
The Court was referred to pages 1 to 17 of the record of proceedings
before the DDPR for the evidence. Further reference was made to page 3
at paragraph 6 of the arbitration award.
22. 1st Respondent submitted in answer that if evidence of Rethabile
Tlebere was not considered, that it related to issues that had been
accepted as common cause that is issues that had been confirmed by
Applicant. It was argued that it would thus not affect the outcome. It
was however denied that the evidence was not considered.
23. We have gone through the record of proceedings before the DDPR. We
do confirm that from pages 1 -17 is the evidence of Rethabile Tlebere. We
also confirm that from the reading of paragraph 6 of the arbitration
award, that evidence was not considered. At this paragraph the learned
Arbitrator notes that,
In trying to convince this tribunal about the fairness of the applicants
dismissal, the respondent company called upon Messrs Tsepo Monare and
Molise Kotelo as its witnesses. Thereafter, the learned Arbitrator
proceeds to analyse their evidence and then makes a conclusion.
24. Evidently, the evidence of Rethabile Tlebere was not considered
notwithstanding that she was the first witness in the proceedings.
Having perused the record at pages 1 17 of the record, we confirm that
Tlebere gave evidence that showed that the circumstances of the cases
being compared then were not the same. This was crucial evidence as it
was the defence of Applicant against 1st Respondent case. Consequently,
this evidence was material and should have been considered.
25. We reject the suggestion that it was evidence that was common cause,
as 1st Respondent case and evidence was that Applicant had been
inconsistent, while the evidence of Rethabile Tlebere showed otherwise.
We therefore find that the learned Arbitrator erred in not considering the
evidence of Rethabile Tlebere. We are of the view that if considered, the
evidence of Rethabile Tlebere may have influenced the learned Arbitrators
decision, at least in so far as the issue of consistency/inconsistency is
concerned.
AWARD
We thus make an award as follows:
a) That the review application is granted.
b) The award in referral A0660/2013, is reviewed and set aside.
c) The matter is remitted to the DDPR to be heard de novo before a different
arbitrator.
d) The order must be complied with within 30 days.
e) No order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF MAY, 2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MRS. RAMASHAMOLE
MISS LEBITSA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
ADV. K. LETSIE
ADV. RAMPAI
LC/REV/23/2013
A0223/2012(b)
APPLICANT
AND
NTHABISENG JOYCE SEETSI
DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of the arbitration award. Four grounds of review having
been raised. Court not finding merit in same and dismissing the review. The
arbitration award being reinstated. No order as to costs being made.
Principles considered: distinction between review and appeal; requirements for
a condonation application; and the rule against reliance on issues not
canvassed.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A0223/2012 (b).
The brief background of the matter is that 1st
Respondent was employed by Applicant until her contract terminated.
She then referred a claim for severance payment and notice with the
Directorate of Dispute Prevention and Resolution (DDPR). 1st Respondent
obtained judgment in default of Applicant.
2. Unhappy with the default award, Applicant initiated the current review
proceedings, wherein it sought the review, correction and/or setting aside
of the arbitral award in issue. However, due to a delay in the prosecution
of the matter, 1st Respondent applied for the dismissal of the review for
want of prosecution. In reaction to this application, Applicant filed its
reply to the 1st Respondent answer, together with an application for
condonation.
3. On the date of hearing, parties agreed to abandon all the other
applications, that is, the dismissal application as well as the condonation,
in favour of the merits of the matter. They agreed on the granting of
condonation for the late filing of the reply. Having considered the basis of
the condonation application and having found merit in same, We granted
it and directed parties to address Us on the merits of the main review.
Five grounds of review had been raised but only four were argued.
AWARD
We therefore make an award as follows:
a) The review application is refused.
b) The award in referral A0223/12 (b) remains in force and is to be complied
with within 30 days of issuance herewith.
c) No order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF MAY, 2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MOTHEPU
MR KAO
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
ADV. MABULA
MR. LETSIE
LC/REV/109/2010
A0534/2010
APPLICANT
DDPR
M. MASHEANE (ARBITRATOR)
RAMOLIKO MONETHI
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
JUDGMENT
Application for review of arbitration award. 3rd Respondent raising a point
limine of improper procedure. 3rd Respondent arguing that it is improper for a
legal representative to depose to an affidavit laying out Applicants review
grounds and then continue to represent an applicant party. Court finding merit
in the point limine. Court excusing Applicants current representation and
directing that Applicant find another representative or to appear in person. No
order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A0534/2010. The background of the matter is that 3rd Respondent was
an employee of Applicant until he was dismissed for misconduct.
Unhappy with his dismissal, Applicant referred a claim for unfair
dismissal with the DDPR.
2. The matter was duly heard in the absence of Applicant, after which an
award was made in favour of 3rd Respondent. In terms of the award,
Applicant was ordered to pay 3rd Respondent compensation in lieu of
reinstatement. Unhappy with the default award, Applicant initiated
rescission proceedings against the said award.
3. The rescission application was heard but refused with the initial award
being reinstated. Equally unhappy with this award, a review was lodged
with this Court by Adv. Ntaote, Applicants representative. He specifically
deposed to averments in support of the review application.
4. At the commencement of the proceedings, 3rd Respondent raised a point
in limine that the matter be dismissed. The premise of the claim was that
it was improper for Adv. Ntaote to have deposed to an affidavit on behalf
AWARD
We therefore make a finding in the following:
a) That the Applicants current representative is excused from these
proceedings on account of his conflicting involvement,
b) Applicant may appear in person or find another representative, if he may
so wish, and
c) No order as to costs is made.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF MAY 2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MRS. RAMASHAMOLE
MRS. THAKALEKOALA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 3rd RESPONDENT:
ADV. NTAOTE
ADV. RAMPAI
LC/REV/155/13
A0855/2013
APPLICANT
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Applicant for review of arbitration award. Several grounds of review raised. 1 st
Respondent raising two points in limine against the additional review grounds
non-compliance with the Rules and Lack of relevance of averments. Points
being upheld and additional grounds being struck off. Applicant proceedings
with two grounds. Court not finding merit in them and dismissing the review
application. Distinction between and appeal and review being considered. No
order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the award in referral A0855/2013.
The brief background of the matter is that Applicant was an employee of
1st Respondent until she was dismissed for misconduct. Unhappy with
the dismissal, she referred a claim for unfair dismissal with the
Directorate of Dispute Prevention and Resolution (DDPR). An award was
issued on 25th day of October 2013, dismissing her claim.
2. Equally unhappy with the arbitration award, Applicant approached this
Court for review. About six grounds were raised on her behalf, in terms
of which the review, setting aside and/or correction of the said award was
sought. In answer to the application, 1st Respondent had raised two
points in limine, specifically attacking the additional grounds of review.
Both parties were heard on all claims and Our judgment follows.
SUBMISSIONS AND ANALYSIS
Points in limine
Non-compliance with Rule 16 (6)
3. 1st Respondents case was that the documents filed on behalf of Applicant
purportedly under Rule 16 (6), did not comply with that Rule. It was
argued that in terms of the said Rule, there has to be a notice to amend
the Notice of Motion, accompanied by an affidavit that states the grounds
being added or amended. It was submitted that these said documents
are short of the requirement and should be struck off.
4. Applicant answered that Rule 16 (6) has been complied with. It was
submitted that in the main review, they had reserved the right to add
grounds of review and this is what they did. It was argued that the
documents in issue are supplementary papers and did not need to take
the form of a Notice of Motion.
5. We have gone through Rule 16 of the Labour Appeal Court Rules of 2002,
which are now the Rules of this Court in cases of review of arbitration
awards. In terms of that Rule, and in particular sub-rules 2 and 3,
(2) A party wishing to review a decision shall file a notice of motion with
the registrar....
(3) The Notice of Motion shall
....
(c)
be supported by an affidavit setting out the factual and legal
grounds upon which the applicant relies to have the decision or
proceedings corrected or set aside.
6. Now sub-rule (6) thereof provides that,
The applicant shall, within 7 days after the Registrar has made the record
available, either (a) by delivering a notice and accompanying affidavit, amend add to or
vary the terms of the notice of motion and supplement the supporting
affidavit; or
7. Applicant has filed additional grounds upon which she relies to have the
arbitration award corrected or set aside. A procedure has been laid out
under Rule 16 (2) and (3). This being the case, Applicant is bound by
that procedure. We are of the view that, a notice and affidavit required
under 16 (6) is one contemplated under Rules 16 (2) and (3). Sub-rule (6)
does not operate in isolation but flows from the sub-rules that precede it.
Therefore, We are in agreement with 1st Respondent that Applicant has
failed to comply with Rule 16 (6).
Lack of relevance
8. 1st Respondents case is that the averments contained in the supporting
affidavit to the notice to file additional grounds are irrelevant. It was
argued that the said averments have no relation at all with the proposed
additional grounds, as they neither support nor augment them. It was
submitted that rather they state the obvious facts which have already
been pleaded in the initial Notice of Motion. It was prayed that the
supporting affidavit be struck off as being irrelevant.
9. Applicant answered that the averments are relevant as they support the
additional ground. It was further argued that, that notwithstanding it is
improper for 1st Respondent to raise this issue as point in limine. It was
added that the issue would have been properly raised as a defence to the
merits rather than in this fashion. It was said that the practice adopted
15. 1st Respondent answered that one of the elements in an application for
review is prejudice. It was submitted that a party applying for a review
must show that as a result of the alleged irregularity, they suffered
prejudice. It was argued that Applicant has failed on this requirement
and therefore that the review be refused.
16. It was further argued that Applicants case before the learned
Arbitrator was not for a distinction between late arrival and absenteeism.
It was submitted that rather the misconduct was not the issue but that
Applicant was of the view that the sentence was too harsh. It was argued
that Applicant is pleading a new case on review. It was added that
Applicant is also raising a new ground of review from the bar as no such
argument has been raised in the affidavit to the Notice of Motion.
17. On the second argument, it was submitted that this is an appeal as it
does not show any procedural irregularity. It was argued that assuming
it is properly raised, the fact that there was acceptance of misconduct,
makes the argument baseless. It was added that Applicant never denied
the misconduct as his case was that the sentence was too harsh. The
Court was referred to paragraph 3 of the arbitration award.
18. We have considered the submissions of both Applicant and 1st
Respondent. We do confirm that Applicant had complained only about
the harshness of the sanction before the DDPR. Supporting this is the
arbitration award on paragraph 3 where the following is recorded,
Applicant is challenging the dismissal on the ground that the sanction to
dismiss her was too harsh.
Clearly, there was acceptance of misconduct for if there had been none,
Applicant would have questioned the substantive aspect of her dismissal,
namely that she was charged and dismissed for what she had not done.
19. In view of the above said, the learned Arbitrator could not have
determined the distinction between lateness and absenteeism as the
reason for dismissal was never the issue. We wish to reiterate that if the
reason for the dismissal was the issue, it would have been expressly
raised, which was not the case in casu. Consequently, the learned
Arbitrator did not err in not making the distinction between absenteeism
and lateness. If the learned Arbitrator had, She would have determined
an issue in respect of which She was not called. She would have therefore
acted contrary to the dictates of the authority of Phetang Mpota vs.
Standard Bank LAC/CIV/A/06/2008.
20. In the above authority, the learned Dr. K. E. Mosito AJ, held at
paragraph 20 of the typed judgment that,
The Court of Appeal and this court have on several occasions deprecated
the practice in terms of which the courts grant order that nobody has asked
for. In several of its decisions the Court of Appeal has deprecated the
practice of granting orders which are not sought for by the litigants.
AWARD
For the above reasons, We find as follows,
a) That the review application is refused.
b) The award of the DDPR is reinstated.
c) No order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF MAY, 2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MOTHEPU
MRS. THAKALEKOALA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
ADV. LEBAKENG
ADV. NONO
LC/REV/17/2012
A0536/2011
APPLICANT
AND
MACHERE LERAISA
DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for the review of the arbitration award. Only one ground of review
having been raised. 1st Respondent claiming from the bar that pleadings are
vague and that they made it difficult for her to answer. Court finding no merit
in claim. Court adding that the issue ought to have been taken earlier. Court
further not finding merit in the review ground and dismissing the review.
Requirements for unreasonableness as a review ground being stated. No order
as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A0536/2011. Only one ground of review has been raised on behalf of
Applicant. The brief background of the matter is that 1st Respondent was
employed by Applicant until she was dismissed for misconduct. Unhappy
with her dismissal, she referred a claim for unfair dismissal with the
Directorate of Dispute Prevention and Resolution (DDPR).
2. The matter was duly heard in arbitration at the end of which an award
was issued, wherein Applicant was ordered to reinstate 1st Respondent in
terms of section 73 of the Labour Code Order 24 of 1992. Equally
dissatisfied with the finding, Applicant initiated the current proceedings,
in terms of which it sought the review, correction and/or setting aside of
the said arbitration award.
3. We wish to note that at some stage during the pleadings, 1st Respondent
had made an application for the dismissal of this review for want of
prosecution. On the date of hearing the said application was withdrawn
in favour of the merits of the matter. We endorsed the withdrawal and
accordingly directed parties to proceed to address Us on the merits. Our
judgment therefore follows.
doing, she has not laid a complaint against the initial pleadings by
Applicant. We therefore maintain Our view in the case of Masekhanto
Sekhanto v Maluti Mountain Brewery (supra) that,
If 1st Respondent truly found the review grounds vague, the proper
procedure would have been to raise a point of law prior to filing its answer.
We therefore find that this point of law has been overtaken by events and
as such it is not competent at this stage.
11. Unreasonableness is the only instance in which an award may be
challenged on the conclusion. The conditions for this challenge to
succeed are that there must be evidence, which evidence must be
accepted. With the evidence having been accepted, there must only be
one reasonable conclusion against which the decision maker strayed (see
Carephone (Pty) Ltd v Marcus NO & 7 others (1998) 11 BLLR 1093 (LAC) at
1103).
12. In casu, it is suggested that there was evidence to show that 1st
Respondent had committed misconduct. It is not alleged that such
evidence was accepted by the learned Arbitrator so that she was bound to
the conclusion suggested or sought to be suggested by Applicant as being
the one and only reasonable one. This being the case, Applicants case
does not pass the test for unreasonableness.
13. We are therefore to conclude that the learned Arbitrator duly applied
Her mind to the facts before Her and that she made a reasonable
conclusion. We also led to the view that Applicant is merely unhappy
with the arbitration award, and in particular the conclusion as opposed
to the procedure. We also take note of the authority of Rustenburg
Platinum Mines Ltd CCMA (supra) referenced by 1st Respondent.
AWARD
In the light of the above reasons, We make the following award:
a) That the review application is refused.
b) That the award in referral A0536/2011 remains in force and must be
complied with within 30 days of issuance herewith.
c) No order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF MAY, 2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MOTHEPU
MR. MATELA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
ADV. PEETE
ADV. LEBAKENG
LC/97/2014
APPLICANT
AND
SECURITY LESOTHO
RESPONDENT
JUDGMENT
Claim for payment under the Workmens Compensation Act of 1977. Matter
being heard unopposed. Applicant succeeding to satisfy the requirements for
his claim. Court awarding the claimed amount. No order as to costs being
made.
BACKGROUND OF THIS DISPUTE
1. This is a claim for payment of monies under the Workmens Compensation
Act of 1977. It was heard in default of the Respondent. The matter was
initiated on the 17th October 2014 and served upon Respondent in the
20th October 2014. Accordingly to Applicant, notwithstanding service of
process, Respondent failed to react, by filing an answer in terms of Rule 5
of the Rules of Court, leading to the initiation of an application for
judgment by default.
2. Notwithstanding service of process in same, Respondent failed to both
react and attend the proceedings. We therefore granted the request by
Applicant to be heard and granted judgment in default. In making this
conclusion, We were guided by Rule 7 of the Rules of this Court that,
whenever a respondent fails to file an answer to an originating
application, the Court may, upon application in writing by the applicant,
being satisfied as to receipt of the originating application by the
respondent, enter judgment for the applicant, or make such order or
determination as it considers just.
3. Having heard the oral evidence of Applicant, and having considered the
documentary evidence of Applicant, Our judgment follows.
EVIDENCE AND FACTS
4. Applicants case is that on or around the 20th May 2011, while on duty,
he was shot on the belly. He gave evidence of a medical report marked
MM1.
Thereafter a notice of injury was submitted to the Labour
Department on his behalf by Respondent, for computation of
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. PHANGOA
NO ATTENDANCE
LC/04/2015
APPLICANT
AND
NEW STAR SUPERMARKET (PTY) LTD
RESPONDENT
JUDGMENT
Claims for unfair dismissal, unpaid overtime and weekly rest days.
Respondent failing to attend and court proceedings in default upon application
by Applicant. Applicant successfully establishing her claims. Court finding that
the dismissal of Applicant constitutes both an unfair labour practice and an
automatically unfair dismissal. Court granting judgment in her favour. Court
No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. These are claims for unfair dismissal for being a member of a trade
union, unpaid weekly rest days and unpaid overtime. The matter was
opposed but heard in default of Respondent by reason of its nonattendance. In coming to this conclusion We were guided by the
provisions of Rule 16 of the Rules of this Court.
2. The brief background of the matter is that Applicant was an employee of
Respondent until she was dismissed. Unhappy with the dismissal, she
referred a claim for unfair dismissal with the Directorate of Dispute
Prevention and Resolution (DDPR), together with claims for overtime,
public holidays, weekly rest days and unpaid wages.
3. The matter was duly conciliated upon but failed to resolve. Having
formed the opinion that the unfair dismissal claim constituted an unfair
labour practice, the matter was referred to this Court in terms of section
227 (5) of the Labour Code (Amendment) Act 3 of 2000, presumably read
with section 226(3) thereof, as it was referred together with other claims
that would ordinarily lay within the jurisdiction of the DDPR. It was set
before this Court on this day.
4. As earlier, noted, Respondent did not attend, and as a result, Applicant
applied to the Court to be heard in default of Respondent. We granted
the application and directed that the matter proceed in the merits as
such. Having heard the evidence of Applicant, and having considered
evidence filed in support, Our judgment follows.
11. Regarding the weekly rest days claim and overtime claim, Mr.
Mokhahlane submitted that Applicant had satisfied the requirements of
section 118 of the Labour Code Order (supra) in that she worked both
during weekly rest days and overtime. He added that in terms of the law,
an employee must be paid. He asked that the Court grant judgment as
shown by evidence.
ANALYSIS
12. In terms of section 66 (1) of the Labour Code Order (supra), an
employee may only be fairly dismissed on the following grounds:
(a) Connected with the capacity of the employee to do the work the
employee is employed to do (including but not limited to an employees
fraudulent misrepresentation of having specific skills required for a
skilled post);
(b) Connected with the conduct of the employee at the workplace; or
(c) based on the operational requirements of the undertaking,
establishment or service.
13. Subsection (3) (a) thereof provides that:
The following shall not constitute valid reasons for termination of
employment
(a) Trade union membership or participation in trade union activities
outside working hours or, with the consent of the employer, within
working hours;
14. Section 196(2) of the Labour Code Order (supra), provides that,
(2) Any person who seeks, by intimidation, threats, dismissal, imposition
of a penalty, giving or offering to give a wage increase, or any other means,
to induce an employee to refrain from becoming or to refrain from
continuing to be a member, officer or trustee of a trade union shall commit
an unfair labour practice.
15. In casu, the reason behind the termination of Applicant is not valid.
We say this because it neither relates to her incapacity, workplace
misconduct or the operational requirements of the employer. Rather, the
reason is based on her membership to a trade union. A dismissal based
on this reason is clearly a violation of both sections 196(2) and 66 (3) (a)
of the Labour Code Order (supra). It amounts to both an unfair labour
practice and an automatically unfair dismissal, irrespective of whether a
hearing was given or not. As a result Applicant is entitled to a relief
under section 73 of the Labour Code Order (supra).
16. Regarding, Applicants claim for overtime, the instructive section is
section 118 of the Labour Code Order (supra). In terms of subsection (3),
thereof, an
employer may request an employee to work overtime in addition to the
normal hours provided for in this section, for up to 11 additional hours
during any one week. In respect of the additional hours, the employer shall
pay the employee for such overtime at a rate not less than one and one
quarter times his or her normal wage rate.
17. In view of the dictates of the above section, Applicant is entitled to be
paid for working overtime, during the period in issue. She has satisfied
Us that she is entitled to be paid.
18. About week rest days claims, section 117 (2) of the Labour Code Order
(supra) provides that,
whenever an employee is required to work on his/her day of weekly rest
or on a public holiday, the employer shall pay him or her for such work at
double the employees wage rate for an ordinary work day.
19. In the same vein, in terms of the dictates of the above section
Applicant is entitled to be paid for working on her rest days in the period
in issue. We are satisfied that she has established that she is entitled to
be paid.
FORMULATION OF THE AWARD
Unfair dismissal
20. Applicant has prayed for reinstatement without loss as a remedy. In
terms of section 73 (1) of the Labour code Order (supra),
If the Labour Court holds the dismissal to be unfair, it shall, if the
employee so wishes, order the reinstatement of the employee in his or her
job without loss of remuneration, seniority or other entitlements or benefits
which the employee would have received had there been no dismissal.
21. We have already determined that the dismissal of Applicant is not only
unfair but automatically unfair. As a result, as in line with both her
wishes to be reinstated and the dictates of section 73 (1) of the Labour
Code Order (supra), We award to Applicant the remedy of reinstatement
as prayed, with effect from 7th October 2015.
OVERTIME
22. In terms of section 118 of the Labour Code Order (supra), an employee
can only work up to 11 hours per month. This means that in the period
from July 2012 to September 2014, which is 26 months, applicant could
only work for 1,144 hours. This is computed as follows,
1 week = 11 hours maximum
1 month = 44 hours maximum (11 x 4 weeks)
26 months = 1144 hours (26 months x 44 hours)
Her monetary entitlement is thus
1144 hours x 1.25 x 1608.00
195
= M11,792.00
23. The rest of the hours in excess of the 1144 hours constitute an offence
in terms of section 118 (4) of the Labour Code Order (supra). Subsection
(4) provides that
is
therefore,
AWARD
We therefore make the following finding,
a) The dismissal of Applicant is unfair.
b) Respondent is ordered to reinstate Applicant on the 7th October 2015,
without loss of remuneration, seniority or other entitlements or benefits
which she would have received had there been no dismissal.
c) Respondent is ordered to pay to Applicant the sum of M38,938.34 being
her lost wages, unpaid weekly rest days and overtime.
d) The order is to be complied with within 30 days of issuance herewith.
e) Failure to reinstate Applicant on the stated date, shall cause her to
accrue an amount equal to her monthly salary for every month that
Respondent fails, neglects and/or refuses to comply with this order,
without prejudice to the right of Applicant to approach this Court for
enforcement and/or contempt.
f) No order as to costs is made.
THUS DONE AND DATED AT MASERU ON THIS 7th DAY OF SEPTEMBER
2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MRS. MOSEHLE
MRS. THAKALEKOALA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
MR. MOKHAHLANE
NO APPEARANCE
LC/09/2015
APPLICANT
AND
NALELI SUPERMARKET (PTY) LD
MR. EMBO CHAN
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for enforcement of the DDPR Award and committal for failure to
comply with same. Court granting application to be heard in default and
hearing the matter in default of Respondents. Court finding in favour of
Applicant and ordering compliance with the DDPR award and setting terms of
compliance. Court declining the power to commit for non-compliance with the
award of the DDPR. No order as to costs being made. Also considered
Jurisdiction of the Labour Court to apply awards of the DDPR; Sources of the
Labour Law of Lesotho; and Interpretation of section 24(2)(j) of the Labour
Code Order 24 of 1992.
BACKGROUND OF THE DISPUTE
1. This is an application for the enforcement of the award of the Directorate
of Dispute Prevention and Resolution (DDPR) in referral A0347/14, and
the committal of 2nd Respondent for failure to comply with the said
award. The matter has not been opposed and no appearance was made
on behalf of Respondents on the date of hearing.
2. The brief background of the matter is that Applicant was an employee of
the 1st Respondent until he was dismissed for misconduct. Unhappy with
his dismissal, he referred a claim for unfair dismissal with the DDPR.
The matter was duly conciliated upon but without success. It was then
heard in arbitration.
3. An award was thereafter issued in favour of Applicant, wherein the 1st
Respondent was ordered to reinstate him into his former position, in
terms of section 73 of the Labour Code Order 24 of 1992. The Order was
to take effect on the 3rd November 2014. 1st Respondent had also been
ordered to pay Applicant an additional amount of M57.44 as his unpaid
public holiday due.
4. Acting on the strength of Rule 14 of the Rules of this Court, and in
consideration of an application by Applicant to be heard in default, We
to commit and punish for contempt any person who disobeys or unlawfully
refuses to carry out or to be bound by an order made against him or her by
the court under the Code.
12. Clearly, the section only allows this Court to commit for contempt in
relation to its order and not of any other court or body. This position has
been addressed by the Court of Appeal of Lesotho in the case of Nokoane
Mokhatla v Lesotho Brewing Company (Pty) Ltd and Others C of A (CIV)
35/13.
13. In that authority the Court had the following to say, in interpreting
section 24 (2) (j),
Then the offence is committed in respect of an order of either the Labour
Court or the Labour Appeal Court, depending on the context as per section
3 of the Code.
14. Therefore, this Court cannot order the committal of the 2nd
Respondent except in the circumstances stated by the court, that is,
where contempt is against the order of either this Court or the Labour
Appeal Court, depending on the context. What We can only do, is to
apply or give effect to the award by ordering compliance therewith.
AWARD
We therefore make an award as follows,
a) Respondents are ordered to comply with the award of the DDPR in
referral A0347/2014 within 30 days of issuance herewith;
b) Failure to comply with this order amounts to contempt of this Court;
c) If this order is not complied with within 30 days of issuance herewith,
Applicant may approach the Court, without notification to Respondents
for the issuance of a warrant for contempt against 2nd Respondent;
d) For each month that Respondents refuse, fail and/or neglect to comply
with the order of this Court, a fine equal to Applicants last salary shall
accrue and become payable to Applicant.
e) No order as to costs is made.
THUS DONE AND DATED AT MASERU ON THIS 7th DAY OF SEPTEMBER
2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MRS. RAMASHAMOLE
MR KAO
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENTS:
MRS. LECHE-LECHESA
NO ATTENDANCE
LC/23/2011
APPLICANT
AND
ECONET-TELECOM LESOTHO
RESPONDENT
JUDGMENT
Claim for unfair dismissal on the ground of operational requirements of the
employer. Applicant challenging both the procedural and substantive aspect of
his dismissal. Applicant asking for reinstatement as a principal remedy and
compensation in lieu of reinstatement in the event that reinstatement is not
possible. Court finding that the dismissal was fair both substantively and
procedurally. Court however finding that Applicant is owed his pension from
commencement of his employment to date of merger. No order as to costs being
made.
BACKGROUND OF THE DISPUTE
1. This is a claim for unfair dismissal on the ground of operational
requirements. The brief background of the matter is that Applicant was
an employee of Respondent until his retrenchment. Unhappy with the
retrenchment, he filed a claim for unfair dismissal with the Directorate of
Dispute Prevention and Resolution (DDPR).
The matter was duly
conciliated upon but conciliation failed to resolve same. It was then
referred to this Court for adjudication.
2. In his opening statements to the claim, Applicant stated that he
challenged both the procedural and substantive aspects of his dismissal.
Substantively, he stated that there was no need for him to be trained as
he had the necessary skills. Procedurally, he stated that he was not
consulted prior to his retrenchment. Respondent case was that it had a
valid reason for retrenching Applicant as he had suggested to be
retrenched and further that he was consulted on the issue. It is against
this background that the matter was heard. Our judgment follows.
FACTS AND EVIDENCE
3. Applicant testified on his own behalf and did not have any witnesses
beyond his own evidence. Respondent led the evidence of two witnesses
namely Kuleile Thekiso and Elia Madondo. The evidence is summarised
in the following.
Applicants case
4. Applicant testified that he is an engineer with qualifications from three
universities. He is the founder of Econet Ezi Cell Lesotho. He did his
engineering in the United Kingdom at the University of Liverpool. In his
studies at Liverpool University, he did subjects in both mobile and fixed
telecommunications. He also did a number of courses in different aspects
of telecommunications, while in the employ of Respondent.
5. He further testified that he lectured on a part time basis at the National
University of Lesotho, due to his skills and knowledge in
telecommunications studies. He has also designed and provided a mobile
solution to the Lesotho Highlands Development Authority, in its phase 2
project. He added that he was trained in China on converged networks,
where he also did mobile communications. Owing to his skill and
knowledge, he designed a technology master plan for Respondent.
6. He also testified that his skills and knowledge are sufficient for the
operations of Respondent and do not need to be developed. He stated
that in 2009, a skills audit was conducted within Respondent and he was
found to have adequate skills and knowledge. Further that even the
Respondent performance management system bore prove of this, as he
always scored beyond the target.
7. He stated that the secondment that led to his retrenchment was not
genuine but meant to disadvantage him, and possibly force him out of
Respondent employ. He added that he is led to believe this by the fact
that, not only did he not lack skill and knowledge, but that the terms of
his secondment contract were inferior to those of the initial contract with
Respondent. He stated that his initial contract had pension, medical aid
and more leave days than the new one.
8. He testified that after being told that he was going on secondment, he
tried to appeal the decision to the Respondent Chief Executive Officer. He
stated that rather than to address his appeal, the Chief Executive Officer
diverted his attention to the ending of the employment relationship
between parties. He added that thereafter he was terminated by way of a
retrenchment, which he only learnt of in his letter of termination.
9. Applicant asked to be reinstated into his former position in terms of
section 73 of the Labour Code Order 24 of 1992, as it still existed. In the
alternative, he asked to be paid an amount equivalent to his 2 years
which was the remaining period up to the end of his contract, his
severance payment in the sum of M678,510-00, from 1989 when he
joined Respondent to date of end of contract. He also claimed his pension
from 1989 up to 2008, as he was only paid pension from 2008 to date of
termination. His pension claim is M100,585.16.
10. He also asked for his performance bonus for the years 2010, 2011,
2012 and 2013. His claims are M105,007, M118,407, M133,515 and
Morahanye (supra); Madibeng v Lesotho Bank 199 (Pty) Ltd LC/34/05; and
Mokhisa & Others v Lesotho College of Education LC/59/2005.
ANALYSIS
28. We wish to note that We accept the content of the authorities and
principles highlighted. We wish to note that a single conduct by an
employee, can give rise to a number of charges that may lead to his/her
dismissal. That is, such conduct may give rise to a single reason or a
combination of the reasons for dismissal recognised under section 66 (1)
of the Labour Code Order (supra). This means that from a single conduct,
an employer can be charged of either incapacity, misconduct or
operational requirements of the employer. This is essence means that
Respondent was not bound in law to charge and/or dismiss Applicant on
the ground of misconduct for refusal to obey an instruction, even if his
conduct amount to that.
29. Further, We note and accept the definition of redundancy as shown by
Applicant from the authority of Standard Lesotho Bank v Lijane
Morahanye (supra). However, We are satisfied that it was not used in the
context that Respondent suggests. The legal definition is focused on the
circumstances of the employer, while in casu it has been used to refer to
the circumstances of the employee. The reason is not hard to find as
normally, retrenchment is at the instance of the employer while in casu
evidence has proven it to have been at the instance of the employee, being
Applicant.
30. While it has not been disputed that Applicant performed beyond
targets, the Respondent has been able to satisfy Us that with the merger,
there was a need for new skills hence the need to second Applicant to
Zimbabwe. We say this because it has also not been disputed that
Respondent initially offered fixed line communications, and that mobile
communications only came with the merger. We are further fortified in
this view by the Applicants acceptance that the communications industry
is dynamic and that it requires constant training.
31. Regarding consultations, evidence has shown that there were meetings
and correspondence in the form of letters where both the secondment and
termination were discussed.
This is Our view was consultation
contemplated by the Codes of Good Practice (supra), and the authorities
cited by parties. The decision to terminate Applicant was borne by the
meetings and correspondence, which according to evidence started
immediately after Applicant was eventually terminated.
32. About the performance bonus and membership fees, We agree with
Respondent that they depended on the continued employment
relationship. This in essence means they can only be due beyond
Applicants termination, if we uphold his claim of unfair dismissal. About
the severance payment claim, We confirm that during cross examination,
Applicant conceded that it was paid. However, what has not been
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. PHEKO
MR. LETSIKA
LC/93/2014
APPLICANT
AND
JONSSON MANUFACTURING (PTY) LTD
RESPONDENT
JUDGMENT
Claims for payment of union dues in terms of section 85 of the Labour Code
Order 24 of 1992. Court finding that Applicants claims are for unpaid monies
due under the Act. Court finding that the Applicants claims fall within the
jurisdiction of the DDPR in terms of section 226(2) of the Labour Code
(Amendment) Act 3 of 2000. Court also declining jurisdiction. The principle of
incidental jurisdiction discussed. No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is a claim for an order directing the Respondent to deduct monies
from the wages of its employees, Applicant members, as union dues. The
claim has been referred in terms of section 85(2) (g) (iv) of the Labour
Code Order 24 of 1992. According to Applicant, the employees of
Respondent in question have given their written consent for the
Respondent to deduct certain monies and pay them over to Applicant as
union dues. Respondent strongly opposes the case and in addition, has
raised a point in limine.
2. In terms of the point in limine raised, Respondent argues that this matter
should have been referred to the Directorate of Dispute Prevention and
Resolution (DDPR) for conciliation, before it could be brought to this
Court. Applicants also opposed the point in limine. We gave both parties
the opportunity to address Us and having heard them, Our judgment
follows.
SUBMISSIONS AND ANALYSIS
3. According to Respondent, all claims that must be brought before this
Court for adjudication must first be conciliated upon, in terms of section
227 of the Labour Code (Amendment) Act 3 of 2000. It was argued that
the matter at hand, has not been conciliated upon, contrary to the
provisions of section 227. It was submitted that evident to this is the fact
such monies where authorisation has been made in terms of this section.
Consequently, failure to make such deductions and to forward them to
the union gives rise to a claim for unpaid monies.
10. In terms of section 226(2)(c) of the Labour Code (Amendment) Act
(supra), the DDPR has jurisdiction to hear and determine by arbitration
the following disputes,
a dispute concerning the underpayment or non-payment of monies due
under the provisions of this Act;
Discernibly, given that the claim at hand is an unpaid monies claim, it
falls within the jurisdiction of the DDPR.
11. While We concede that the authority in the case of Lesotho Highlands
Development Authority v Tsotang Ntjebe (supra), makes it uncompelled for
a party to refer a dispute referred under section 226 (1) for conciliation, it
is inapplicable in casu. We say this because, We have shown that the
dispute at hand is not a section 226 (1) dispute or one that should be
resolved by adjudication before this Court, but rather a claim for unpaid
monies. What should happen is that Applicants must refer their claims
with the DDPR under section 226 (2) of the Labour Code (Amendment) Act
(supra), and that the claims be conciliated upon in terms of section 227
(4) of the Labour Code (Amendment) Act (supra).
12. We wish to comment that We have gone through the arbitral award in
referral C050/2011. We do confirm, as Respondent has put, that the two
claims were and are different even now. In casu, Applicants are asking
that Respondent be ordered to make deductions from wages of employees
and pay them over to them. In C050/2011, Applicants were asking the
learned Arbitrator to declare the cancellation of a check off facility invalid.
Clearly the claims were and are still different.
13. We wish to further comment that the mere fact that the DDPR, in
determining a claim brought duly before it, would have to deal issues that
it would ordinarily not have jurisdiction if individually referred, does not
divest it of its jurisdiction over a duly referred claim. The DDPR would be
seized with incidental jurisdiction over such issues. We have addressed
this in a number of decisions this far (see Kabelo Teisi v Minopex Lesotho
(Pty) Ltd LC/56/2013, Mathabiso Sibolla & others v Tepo ea Sechaba (Pty)
Ltd t/a Pay n Save LC/14/2015).
AWARD
We therefore make an award as follows,
a) That this Court has no jurisdiction over Applicants claims;
b) Applicants are at liberty to refer their claims with the DDPR;
c) Should they elect to do so, they must within 30 days of issuance
herewith; and
d) No order as to costs is made.
THUS DONE AND DATED AT MASERU ON THIS 10th DAY OF AUGUST
2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MRS. MOSEHLE
MISS LEBITSA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. TLAPANA
ADV. NTAOTE
LC/03/2012
1st APPLICANT
2nd APPLICANT
AND
POPULATION SERVICES INTERNATIONAL
RESPONDENT
JUDGMENT
Claims for unfair dismissal for operational requirements of the employer.
Applicants challenging both the procedural and substantive aspect of their
dismissals. Respondent settling claims of 2nd Applicant and proceeding into
evidence and arguments in respect of 1st Applicant claims. Court finding that
1st Applicant was not consulted and that no valid reason has been stated for
his retrenchment. Court awarding compensation and making no order as to
costs.
BACKGROUND OF THE DISPUTE
1. These are claims for unfair dismissal for operational reasons of the
employer. Applicants, initially, two in number, claimed to have been
unfairly dismissed in that they were not consulted on this decision.
2. The brief background of the matter is that Applicants were employees of
Respondent until they were terminated by way of retrenchment.
Unhappy with their terminations, they referred a dispute with the
Directorate of Prevention and Resolution (DDPR). The matter was duly
conciliated upon but without success. Conciliation having failed, the
matter was then referred to this Court for adjudication.
3. However, prior to the commencement of these proceedings, parties
announced that a settlement agreement had been reached between the
2nd Applicant and Respondent and sought for it to be made an order of
this Court. The settlement was accordingly noted and made an order of
court, and the matter was heard in the merits only in respect of the 1st
Applicant.
4. In his opening statements, Applicant stated that he challenged both the
procedural and substantive aspects of his termination. He specifically
claimed not to have been consulted when the new structure, which led to
his retrenchment, was made. Further that the operational reasons were
not real as funding had been secured by Respondent. Respondents
reaction was that consultations had been duly held and that applicant
was involved. Further that funding which came did not have Applicants
position in its structure. It was on these bases that the matter was
heard. Our judgment therefore follows.
EVIDENCE AND FACTS
5. The evidence of three witnesses was led on behalf of Applicant, including
himself, while only two witnesses were led on behalf of the Respondent.
Applicant and his two witnesses Metsing Tehla and Thato Mxakaza
testified, while Fumane Tehlana and Mampe Mohale testified for
respondent. The evidence is summarised in the following.
Applicants evidence
6. Applicant testified that sometime in February 2011, all Respondent staff
was called to a meeting where they were told that Respondent had
financial problems. They were told that the remaining funds would only
carry them halfway through the year. They were asked to come up with
solutions to stretch the available funds to the end of the year, when
funding would be available.
7. Out of that meeting, a committee was set up to act as a link between
management and the employees on suggestions. Through the committee,
it was suggested that employees work on a two week rotational basis in
which case, they would only be entitled to half pay. The suggestion was
then accepted and adopted by Respondent management. This practice
was to go on until August 2011, and it came to be known as the stretch
option. There was also a condition to the practice, namely that by the
31st July 2011, all staff would be informed if the expected funding would
result in continuity, competitive retrenchment or termination of jobs,
which however, did not happen.
8. Thereafter all staff was invited to the Respondent headquarters to come
and celebrate the availability of funds, as well as the extension of the
Respondent project life. This was sometime in August 2011. At the
celebration assembly, staff was told that the structure of Respondent had
changed and that some of the old positions had been phased out. The
new structure was shown to all staff and all those whose positions had
been phased out, were told to apply for positions in the new structure.
9. Applicant added that before this day, the issue of the structure was never
discussed with them as employees and that for this reason, their
retrenchment, which was influenced by this change, was unfair. He
prayed for compensation of an amount equal to 12 months salaries, being
6 months for substantive and 6 months for the procedural aspect. He
was dismissed on the 31st September 2011. He stated that since his
dismissal, he looked for alternative employment and only succeeded in
April 2012, at the Transformation Resource Centre where he works to
date. He stated that he currently earns the salary of M14,000-00. He
was therefore out of employment for only 7 months.
to staff. In terms of the structure some of the positions had been phased
out and all those affected employees were advised to apply for new
positions. The new structure was never discussed with employees and
they were only seeing it for the first time at the celebration.
Respondent case
1st witness: Fumane Tehlana
16. She was the Deputy Country Representative at Respondent until June
2012. She stated that in February 2011, they held a staff meeting to
inform all Respondent employees that Respondent had financial problems
as funds were running out. In that meeting, sub-committees were set
and they were made up of staff representatives. The purpose was for
them to come up with suggestions to stretch the available funding, and to
come up with suggestions on a way forward, when funding came.
17. Suggestions were that the stretch practice be adopted and that staff
should expect either continuity, competitive retrenchment or termination,
when funding came, and depending on its conditions. When funding
came the structure had also changed and that it affected some of the old
positions including that of Applicant. She stated that Applicant was told
to apply, which he did but did not succeed to get a position in the new
structure.
18. She further testified that the new structure was designed by
Respondent management, when it made proposals for funding with the
donor. Further that applicant and his former colleagues were not
consulted on the structure. She stated that this was because the final
decision on the structure rested with the donor. She added that this is
why all staff only learnt about it on the 23rd August 2011, in the
celebration assembly.
She also testified that the termination of
Applicants position was suggested by Respondent management in their
proposal for funding. Annexures A J were submitted in support of the
Respondents case.
2nd Witness: Mampe Mohale
19. Witness testified that she is the HTC Programme Manager at
Respondent. According to her, sometime early 2011, Respondent realised
that it was running out of funds. As a direct consequence, all staff was
then called to a meeting where they were appraised of this, and given a
chance to suggest solutions.
20. Out of that meeting, there were suggestions that Respondent adopt the
stretch practice. It was further communicated to staff that, when funding
comes later, they should expect to either competed for position, to
continue with employment of termination of their employment, depending
on the terms of the expected funding. Respondent management was to
give all staff feedback on one of the three expectations, not later than 31st
July 2011.
21. Witness added that when funding came, some of the old positions were
phased out. Those affected were told to apply for positions in the new
structure. She stated that the structure which affected those positions,
had been designed by Respondent management and the donor, and that
no employees were involved in the exercise, except those in management.
She stated that the Respondent management is the one that suggested
the changes in the structure.
22. Witness further testified that employees learnt at the ceremony
assembly about the new structure, as it was never discussed before. She
stated that in her opinion, it was unfair for Respondent to have treated its
employees in this fashion, particularly because staff was attending the
assembly to celebrate the award and the extension of the Respondent
project.
SUBMISSIONS
23. Applicants case, on the one hand, is that in terms of section 19(1) of
the Labour code (Codes of Good Practice) Notice of 2003, a retrenchment is
defined as follows,
....a dismissal arising from a redundancy caused by the re-organisation of
the business or the discontinuance or reduction of the business for
economic or technological reasons.
24. Further that section 19(4) of the Codes of Good Practice (supra),
provides that an employer contemplating to retrench its employees has
obligations which are both procedural and substantive. It was added that
the purpose of the obligation is to get parties to engage in a joint problem
solving exercise towards the problems that face them both. It was said
that the exercise is called consultation. The Court was referred to the
cases of Atlantis Diesel Engines (Pty) Ltd v Numsa 1995 1 BLLR 1 (AD);
Standard Lesotho Bank v Morahanye LAC/CIV/A/06/2008; Madibeng v
Lesotho Bank 1999 (Pty) Ltd LC/34/2005; and Mokhisa & Others v
Lesotho College of Education LC/59/2005, in support of the above
proposition.
25. It was argued that Respondent was under a duty to consult Applicant
on the structure, when it became aware that it could change and affect
his position. It was said this was particularly so because the structure
was designed by Respondent at which point, it already did not have
Applicants position. It was prayed that the Court award 6 months
salaries as compensation for the breach of procedure.
26. It was further argued that Respondent failed to show the substantive
fairness of the retrenchment. It was submitted that Respondent has
among others not shown that the retrenchment or elimination of
Applicants position was necessary, and the reason behind that necessity.
Applicant further asked for 6 months compensation for the substantive
aspect. It was added that the absence of a valid reason shows a breach
on the part of Respondent. It was also submitted that Applicant has
37. Applicant has shown that he mitigate his loss by seeking alternative
employment. He has shown to Our satisfaction that as a result of his
efforts, he was only out of employment for 7 months as he was able to
obtain employment by April 2012. We accept the claim readily more so
because, it has not even disputed by Respondent. It is trite law that what
has not been disputed must be accept as a true and accurate position of
events (see Lenka Mapiloko v Pioneer Seed (RSA) and others
LAC/A/08/08; Theko v Commissioner of Police and Another LAC (1990-94)
239 at 242; Small v Smith 1954 (3) SA 434 (SWA) at 438E-F)
38. Applicant has also claimed that Respondent breached his contract by
retrenching him without a valid reason. He has argued that no reason
has been shown that his position was no longer needed and why. We
agree with Applicant because the reason given by Respondent does not
address this aspect. It merely speaks to unavailability of funds which
was no longer the case when Applicant was retrenched. Respondent
further speaks to the new structure, which was its design without
justifying why it had to do away with Applicants position. We therefore
find that Respondent acted in breach of the contract.
FORMULATION OF THE AWARD
39. Applicant has asked for 6 months compensation for procedural breach
and 6 months for substantive breach. While We concede that both the
procedure and substance have been breached, We have taken into
consideration an attempt by Respondent to comply at least, with the
procedural aspect. However, because the intention is not to encourage
parties to breach rules by merely attempting to comply with them, We will
award compensation, with the intention among others to discourage such
behaviour.
40. We have found satisfactory justification in the request for an amount
equivalent to 12 months salaries as compensation. We find it befitting for
the circumstance of the Applicants termination. However, We have
resolved to make an award of 10 months salary, instead of the 12
months sought, in favour of Applicant for both the substantive and
procedural aspect of the dismissal. We are driven by the considerations
which We will explain hereunder.
41. We are aware that Respondent is donor funded. However, this does
not in any way exonerate it from its legal obligations as an employer in
dealing with affairs of its employees. It must at all times comply with the
legal requirements in its trade. We are of the view that We would be
setting a very ruinous precedent if We were to refrain from making this
order, merely on the ground that Respondent is donor funded. In spite of
its circumstances, Respondent must dance to its own music.
42. The ten months award is not meant to unfairly enrich Applicant, but
to compensate him and discourage unlawful conduct on the part of not
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENT:
MR. LETSIKA
ADV. MOSHOESHOE
LC/28/2015
APPLICANT
AND
THE ROSEHIP COMPANY
RESPONDENT
JUDGMENT
Claim for unfair dismissal on grounds of operational requirements of the
employer. An attorney seeking postponement of the matter without proof of
authorisation. Court finding that attorney has no right of appearance and
rejecting the application for postponement. The principle Court directing that
the matter proceed in the merits. Court finding in favour of Applicant. No order
as to costs being made. Principles considered importance of authority to
represent; and principle of ignorance of the law.
BACKGROUND OF THE DISPUTE
1. This is a claim for unfair dismissal borne by an alleged retrenchment of
Applicant. The matter has been duly conciliated upon but without
success. It has been brought before this Court pursuant to section 227
(5) of the Labour Code (Amendment) Act 3 of 2000.
2. The brief background of the matter is that Applicant was an employee of
Respondent until his retrenchment. He referred a claim for unfair
dismissal with the Directorate of Dispute Prevention and Resolution
(DDPR). Conciliation having failed, he initiated the current proceeding
with this Court. The matter was duly set down for this day.
3. On this day, Respondent representative, allegedly one Mr. Mosuoe of
Mosuoe and Associates, appeared before Court to seek a postponement of
the matter. The postponement application was strongly opposed by
Applicant representative, Adv. Nono. We then directed parties to address
Us on same, and thereafter delivered a ruling. Our ruling was to dismiss
the postponement and directing that the matter proceed into the merits.
4. We wish to note that when the matter was set down for hearing, the idea
was to have it heard in default of Respondent, at least on the part of the
Applicant. On the date of hearing, Mr. Mosuoe filed an answer and
proceeded to apply for a postponement. The answer addressed the merits
of the main claim and not the application for the matter to be heard in
Respondents default. Below are Our reasons for refusing to grant the
application for postponement and the making of the subsequent order.
SUBMISSIONS AND ANALYSIS
Application for postponement
5. Mr. Mosuoe applied for a postponement of the matter for three main
reasons. Firstly, he stated that his client, who was to lead evidence, had
not been able to attend on account of unforeseen business meetings.
Secondly, that his client wanted to reconsider its position to see if it could
settle the matter. Thirdly, that the fact that an appearance had been
made, showed an intention to defend the matter. It was added that if the
application for postponement would not be granted, it would offend the
rules of natural justice, particularly the right to be heard.
6. Adv. Nono for Applicant answered that Mr. Mosuoe had no authority to
appear on behalf of Respondent as none had been filed. He argued that
the Rules of this Court require the filing of an authority to represent,
where a legal practitioner appeared on behalf of a party. Further
reference was made to the case of Mamateliso Toana & 61 Others v
Nien Hsing International (Pty) & Another LAC/REV/05/2011, at para 23
on page 8.
7. It was submitted that in the above authority, the Labour Appeal Court
emphasised the purpose and importance of an authority to represent. It
was submitted that the Court stated that an authority to represent is not
just a formality, but a document that determines the legal standing of a
legal representative. It was prayed on this note that the application for
postponement be rejected, as Mr. Mosuoe has no legal standing to appear
and make same.
8. It was added that assuming that Mr. Mosuoe was properly before Court,
the answer filed on behalf of Respondent is contrary to Rule 5 of the
Rules of this Court. It was stated that Rule 5 states that an answer shall
be in accordance with form LC2, which appears in part A of the schedule
to the Rules of this Court. It was added that form LC2 requires that a
Respondent party sign the answer and not the representative.
9. It was submitted that contrary to Rule 5, the answer in casu has been
signed by the alleged representative, Mr. Mosuoe of Mosue and
Associates, whom Applicant contested that he has been authorised to
appear. It was added that worse still, was the fact that even the intention
to oppose did not make reference to either Mr. Mosuoe or even Mosuoe
and Associates, but to one Herman Nieumoud, as the one who would
attest to the answer. It was submitted this is further evidence of lack of
authorisation to appear.
10. It was further argued that even assuming that Mr. Musuoe was to be
found to be properly before Court, and that the answer was properly
signed, it had however been filed out of time. It was stated that in terms
27. For the above reasons, with each sufficient to individually dispose of
the application for postponement, We refused same and directed that the
matter proceed in the merits. However, because the application for
default judgment was not opposed We granted it and directed that the
matter be heard in default of Respondent. We were satisfied by the
grounds raised in the application. Our judgment in the merits of the
matter follows.
THE MERITS
Applicants evidence
28. Applicant testified under oath that he was employed in July 2013 in
the position of Production Manager, until this dismissal.
He was
dismissed allegedly for operational reasons of the employer, on the 25th
March 2015. At the time of his dismissal, he earned a monthly salary of
M9, 000-00. He stated that on the 7th February 2015, all staff was called
to a meeting. In that meeting, the Managing Director informed them that
Respondent Company was experiencing financial problems and was thus
anticipating retrenchments. Staff was also told that management would
consider the criteria to be used, which would be communicated to staff.
29. On the 17th February 2015, another meeting was called where they
were informed that the Quality Assurance Manager had been dismissed.
Staff was told that he had been dismissed for poor work performance and
that anyone that would perform poorly, would meet the same fate. The
General Manager and Applicant were told to keep a look out for poor
performers and to report on them to management by the 27th February
2012. On the 27th February, the anticipated reporting meeting did not
materialise, but rather on the 3rd March 2015, all staff was told that the
financial position of the Respondent company had gone back to normal,
due to good staff performance. Staff was informed that there would not be
any retrenchments anymore.
30. On the 20th March 2015, in another staff meeting, Applicant indicated
to the Managing Director that the dismissal of the Quality Assurance
Manager was heavy on him. He stated that this was so because he was
doing both his job and that of the Quality Assurance Manager. Applicant
recommended that the position of Quality Assurance Manager be filled, or
that the dismissed Quality Assurance Manager be reinstated. The
recommendation angered the Managing Director who told Applicant that
he was disloyal and that he deserved to be dismissed like the Quality
Assurance Manager. Later in that day, Applicant was served with a letter
requesting him to state why he should not be retrenched. A copy of the
letter was tendered and marked TM1.
31. Applicant wrote a letter to explain, which letter was discussed in the
meeting of the 24th March 2015. TM2 was tendered as evidence of
Applicants response to TM1. In that meeting, Applicant was told that
although he had valid reasons why he should not be dismissed, but that
management of Respondent had already made its decision that he should
to dismiss him. In any event, the basis for which Applicant was to justify
why he should stay in employment, was not operational requirements of
the employer, but rather something else. In view of this, the procedure
was also flawed in terminating Applicant.
38. Applicant has asked to be paid the equivalent of 12 months salaries as
compensation. He has satisfied Us that he complied with the provisions
of section 73 of the Labour Code Order (supra), by mitigating his loss and
establishing a breach on the part of Respondent. We therefore see no
reason not to award him the 12 months wages asked for. We wish to add
that the circumstances of Applicants termination, are extremely offensive
to the principles of natural justice. As a result, We would have awarded
more if given the discretion by Applicant. However, We will only award
what he has asked for.
39. Applicant has also satisfied Us that he is worthy of one months salary
in addition, being his salary for April, which could presumably be taken
to have been his notice period. Further, the termination of employment
gives rise to an entitlement of severance payment. We accordingly award
same. The computation of the Applicants award therefore follows.
COMPUTATION OF AWARD
40. Salary at termination
M9,000-00
a) 12 months salary is therefore,
M9,000-00 x 12 = M108,000-00
b) Notice pay is therefore,
M9,000-00
c) Severance pay is therefore,
2 years x 90 x 9,000-00
195
= M8,307-69
AWARD
We therefore make the following award.
a) The dismissal of Applicant is unfair both procedurally and substantively.
b) Respondent is ordered to pay Applicant the sum of M125,307-69,
comprising of compensation, unpaid notice and severance payment due
but not paid.
c) The order is to be complied with within 30 days of issuance herewith.
d) No order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 31st DAY OF AUGUST
2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MOTHEPU
MISS LEBITSA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. NONO
MR. MOSUOE
LC/20/2013
APPLICANT
AND
MINEWORKERS DEVELOPMENT AGENCY
RESPONDENT
JUDGMENT
Claim for unfair dismissal for operational requirements. Applicant claiming
that he was unfairly dismissed both procedurally and substantively, Court
finding in favour of Applicant and awarding compensation. Court taking into
considerations the provision of section 73(2) of the Labour Code Order 24 of
1992. No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is a claim for unfair dismissal for operational requirements of the
employer, in particular economic conditions. The brief background of the
matter is that Applicant was employed by Respondent as the Nursery
Production Manager. He was on a two year contract which commenced
on the 15th March 2010 to the 14th February 2012.
2. Applicant was however terminated on the 31st July 2012, which was
about 5 months later. Unhappy with his termination, he referred a claim
for unfair dismissal with the Directorate of Dispute Prevention and
Resolution (DDPR). The matter was duly conciliated upon but did not get
resolved. A report on non-resolution was then issued, referring the
matter to this Court for adjudication.
3. Applicants case is that he was unfairly dismissed in that he was not
consulted before he was retrenched, and further that Respondent did not
have economic problems, as it had funds to run the project and pay his
salaries. He wishes to be paid compensation in lieu of reinstatement, and
in terms of section 73 of the Labour Code Order 24 of 1992. His case was
strongly opposed by Respondent.
4. We wish to note that in its answer, Respondent had raised a point in
limine that Applicant had failed to observe Rule 3 of the Rules of this
Court, in that he had approached this Court by way of a Notice of Motion
instead of an Originating Application. The point was later withdrawn as
parties agreed that this Court condone the breach by excusing the form
and concentrate on the content. This was duly noted and accepted by the
Court.
5. However, before the proceedings could commence, Respondent raised yet
another point in limine, this time from the bar. It was argued that the
claim referred by Applicant fell under section 226 (2) of the Labour Code
(Amendment) Act 3 of 2000 instead of section 226 (1) thereof, at least per
its reading from the Notice of Motion. It was argued that such claims fall
within the jurisdiction of the DDPR and not this Court. It was prayed
that the matter be remitted to the DDPR for arbitration for want of
jurisdiction.
6. Applicant answered that it has always been its case that the claim fell
within section 226 (2) of the Labour Code (Amendment) Act (supra). It was
submitted that the matter was referred to this Court by the DDPR
because Respondent had raised the defence of operational requirements.
The Court was referred to the report of non-resolution, marked annexure
TT5 to the Notice of Motion. Having considered the submissions of
parties and references made, We ruled that this Court had jurisdiction
and directed that parties proceed to lead their cases. In the light of all
the above background, Our judgment follows.
EVIDENCE AND FACTS
Applicants case
7. Applicants evidence is that by the time he was dismissed by Respondent,
he was then employed on a permanent and pensionable basis. According
to him, the circumstances that led to his dismissal are that, sometime in
March 2012 there was a robbery at the Respondents nursery
department, where he was the Production Manager. Following the
robbery, he was arrested by the Lesotho Mounted Police as a prime
suspect to the incident.
He was later suspended from work by
Respondent Country Director, one Mr. Puseletso Salae. The suspension
did not last long, as he was soon recalled back to work.
8. After reporting to work, he was called to a meeting by the Country
Director, where an attempt was made to coerce him into resigning from
work. He was threatened that if he did not resign, he would lose all his
benefits as a result of the robbery at the nursery department, where he
was responsible for. He however resisted the attempt and continued
working for Respondent. He added that about two weeks later Mr. Salae,
the Country Director, called a staff meeting for the nursery department
staff, to tell them that Respondent had financial problems. They were
informed that they should all expect to be retrenched if the situation
continued. This was on the 19th June 2012.
9. Following that meeting, Applicant was given a letter of termination
informing him that his contract was to end at the end of July 2012. In
terms of the letter, his termination was by mutual agreement. The
content of the letter was later changed to retrenchment, after he had
this meeting that Applicant suggested that himself and one Makoena
Ramakoro, be retrenched to keep the nursery department running,
because they took a huge toll of funds through their salaries. It was as a
result of Applicants suggestion that he was retrenched at the end of July
2012.
15. Witness testified that from February 2012 when his contract ended, he
was kept with the hope that funds would be secured so that he could
continue with his employment as the Nursery Production Manager. It
was denied that Applicant was permanent or even the suggestion that he
was told so. It was also denied that Applicant was ever coerced into
resigning after the robbery incident. It was said that the notification of
termination, TT1, was altered after into TT2, Applicant suggested that it
should read retrenched to shield him against the bank as he had a loan.
16. It was stated that Applicant is the only one that was terminated and
that other employees were maintained and continue to work for
Respondent to date. It was said that this has been possible because
Respondent was later able to secure funding from its Head Office. It was
stated that before Applicant left several efforts had been made to secure
funding but without success.
17. During cross examination witness testified that he became aware of
the need to retrench in February 2012 and that he immediately started
consultations. He however stated that he had no minutes to prove this.
He stated that he could not recall when Applicant suggested to be
retrenched.
Witness further testified that since the termination of
Applicant, Respondent has hired new employees, on a short term basis
though.
He added that Respondent management did not consider
reducing salaries, or applying the LIFO principle in respect of those who
were hired after Applicant, in making its decision to retrench him.
2nd Witness: Maatlehang Kamoli
18. She is the Finance and Administration Manager at Respondent and is
part of the management of Respondent. She stated that Applicant was
hired on a two year contract from March 2010 to February 2012. His
contract was aligned to the contract between Respondent and Anglo
American.
She stated that sometime in 2011, but before April,
Respondent realised that it had financial problems. As a result sometime
in April 2011, Respondent management, including Applicant, went to
Anglo American to ask to be allowed to vary the budget so that they may
be able to fund projects. Their request to vary the budget was approved,
and they were able to continue with operations.
19. When Applicants contract ended, he was advised that though his
contract had ended, he should continue to work while Respondent
awaited funding from the donors. However, the events did not turn out
as expected, as by April 2012 there were serious signs of coffers drying
out. After several failed efforts to get funding from the Respondent
25. During cross examination witness stated that her salary has not been
affected in any way since Applicant left. She stated no one has told or
suggested to her that she is on a month to month contract, but that it is
only her opinion. She stated that she does not know how many
consultations were made, or when they started, or even when the first
meeting was held. She stated that although she was present in the
meeting of the 14th June 2012, she did not comment when Applicant
suggested that she together with himself be retrenched. She stated that
she does not recall if staff was ever told that Respondent would not be
able to pay their salary or not, or the time that Applicant went with
management to seek funding. She stated that although Applicant was
her immediate supervisor, she however, was unaware that he was ever
suspended.
SUBMISSIONS
Applicants submissions
26. It was submitted on behalf of Applicant that he was a permanent
employee of Respondent. It was said that factors demonstrative of this
were, that he was told by the Country Director, one Puseletso Salae that
at the end of his contract he would be so. Further affirming this was the
conduct of the Respondent Finance and Administration Manager, who
had qualifications in General Accounting and a Bachelor of Laws, when
she signed a bank form presenting Applicant to be a permanent employee
of Respondent.
27. It was stated that further incidents included the evidence of
Respondent 3rd witness, Makoena Ramakoro who still works with
Respondent beyond her contract, but not on the basis of the initial
contract. It was added that her contract with Responded which ended in
May 2012, was not renewed but then she worked from then to date. It
was submitted that this is a sign that all contractual employees contracts
were made permanent when they lapsed, including that of Applicant.
28. It was added that even the decision to retrench Applicant is full of
signs that he was permanent. It was argued that if he was not
permanent but on a month to month contract as Respondent suggests, it
was not necessary to either consult or retrench him. It was submitted
that Respondent could have waited for his contract to end, at the end of
June 2012, rather than to give him notice to the end of July 2012.
29. It was further submitted that Applicant was retrenched primarily
because clause 9.3 of the Respondent Human Resources Manual provides
for the retrenchment of permanent full time employees of Respondent. It
was added that even the failure to release Applicants terminal benefits
when his contract ended in February 2012, showed that he was
permanent as they were carried over into his permanent contract, and
only paid at the alleged retrenchment.
30. Regarding the substantive aspect, it was argued that the fact that all
nursery staff, despite having earlier been issued termination letters along
with Applicant, continue to work at respondent shows that funding was
never the issue. It was argued that Applicant was clearly the target of
retrenchments as the issue only came up after the robbery at the
nursery. It was stated that further adding to the view is the fact that
evidence has shown that four more people were employed, including one
who was on a part time basis, during the alleged time of financial
difficulties. Furthermore, the evidence of Respondent 2nd witness that
had Applicant not insisted on being retrenched he would still be working
for respondent, further fortifies the view. It was concluded that all facts
show that Applicant was dismissed for something else and not lack of
funding.
31. It was further submitted that the facts and circumstances of Applicant
go against the claim that he volunteered to be retrenched. It was said
that firstly, it took him almost two years to get employment after the
completion of his studies, due to the rarity of his qualifications.
Secondly, he had just taken a loan from standard Lesotho Bank and had
just had a child. Lastly, that if Applicant had volunteered both himself
and Ramakoro, 3rd witness, Ramakoro ought to have reasonably reacted
to Applicants suggestion. It was stated that this is hard to belief mostly
because the evidence has been fabricated.
32. Regarding the procedural aspect, it was stated that no meaningful
consultation was made. The so called consultation was made on the 14th
June 2012 and it did not consider Applicant suggestions or even the
alternatives to retrenchment. It was submitted that evidence has shown
that Respondent management did not consider reducing salaries or even
applying the last in first out criteria in retrenching, but rather the most
senior officer who ran and drove the project was retrenched.
33. It was argued that the claim that consultations were made as far as in
January 2012 was an afterthought. It was stated that this only came
after he had testified that they started in June 2012. It was added that
further fortifying this, is the fact that the 3rd witness could not say when
they started and did not even have the minutes of those consultations
except for the 14th June 2012. It was said that even the result of these
alleged consultations has not been stated in evidence. It was submitted
that there was no consultations except the meeting of 14th June 2012, for
which there are minutes.
34. It was prayed that Applicant be found to have been unfairly dismissed
and that he be compensated. It was added that in determining the
compensatory award, the Court consider Applicants salaries from date of
dismissal to date of judgment being his actual loss and an award of costs.
It was said that costs be awarded because Respondent unnecessarily
defended a case in which it had no defence. It was submitted that
Applicant has complied with section 73 (2) of the Labour Code Order
40. We are satisfied by both the evidence of Applicant and his argument
that he was a permanent employee. While Respondent has attempted to
discredit the evidence of Applicant, but the attempt has only been to the
extent of annexures TT6, MDA3 and Applicants claim that the Country
Director told him that he was permanent. Annexure TT6, on the one
hand, is a bank document that was signed by the Finance and
Administration Manager which reflected Applicant as a permanent
employee of Respondent. Annexure MDA is a contract of employment
between Applicant and Respondent.
41. However, Respondent has not been able to satisfactorily explain why it
continues to keep and maintain its employees, on the same unaffected
terms, as at the time that retrenchments were anticipated, yet they had
all been issued with retrenchment letters. Further, Respondent had not
been able to explain the need to consult with employees who were on a
month to month contract.
This has led us into concluding that
Applicants contract was more than on month to month terms. Adding to
this is the fact that Applicants terminal benefits were only released after
his retrenchment. All the above factors led Us to conclude that it is more
probable that Applicant had become a permanent employee of
Respondent at termination.
42. On the substantive aspect, We find it odd that Respondent could claim
to maintain to hold its staff to date with the hope of acquiring funding.
Almost 3 years have lapsed since it complained of lack of funding. Not
only is Respondent waiting in anticipation, but evidence has shown that
it has grown in terms of its human resource base. We are doubtful that
this could be the reaction of an entity that is economically struggling.
43. We are fortified in Our view by the evidence that Applicant was
retrenched only because he volunteered to be. It is the evidence of
Respondent 2nd witness, the Finance and Administration Manager, that if
Applicant had not elected to be retrenched, he would still be working for
Respondent to date. We are equally doubtful that this could be the
reaction of an entity that is economically struggling.
44. We also agree with Applicant that his circumstances demonstrate that
there is very little, if any at all, likelihood that he could have volunteered
to be retrenched. While We admit that following the completion of his
studies, he found employment, but we cannot ignore that it took him
almost two years to do so. He had also taken a loan and had just had a
child. These facts negate the alleged likelihood that he volunteered to be
retrenched.
45. While Respondent has witnesses who claim that Applicant did
volunteer to be retrenched, We find that odd and hard to believe.
Respondent 2nd witness, the Finance and Administration Manager, agrees
with Us in her testimony that it was odd that the volunteering of
while an award for future loss relates to the salaries that a dismissed
employee is likely to lose as a result of the dismissal. These are subject
to the two factors contained under section 73 (2), namely mitigation of
loss and the breach by either party.
50. Applicant has shown to Our satisfaction that Respondent has
breached his permanent employment by unfairly terminating him.
Further, he has shown that he mitigated his loss by seeking employment
which resulted in him obtaining same with CARE Lesotho, and attempts
to run his own business. About the award for cost, where a claim relates
to unfair dismissal, an award for costs is not normally made. To be
made, parties must show that one acted in a wholly unreasonable
manner. No such circumstances meet the criteria from the reasons given
by both Respondent and Applicant. We therefore decline to award costs.
FORMULATION OF THE AWARD
Lost earnings
51. From evidence, Applicant was terminated in July 2012. From July
2012 to August 2015, three years and one month have lapsed, which
makes 37 months. However, Applicant was employed by CARE Lesotho
for a period of 7 months. He will thus not be entitled to any award for the
7 months period. The amount awarded will be only for the months out of
employment and they are 30 in number (37 7). The loss earnings
computation is thus as follows,
30 months X M11,340.00 (salary at termination) = M340,200.00
Future loss
52. Applicant has shown that the prospects of finding employment are
very low. At one instance he took almost 2 years to secure employment,
while at some point, it took him slightly over a year. We are of the view
that given the trend, he is likely to take a year out of employment with
hard and solid efforts of seeking employment made. His future likely loss
is thus as follows; M11,340-00 x 12 (1 year) = M136,080-00.
Applicants total award is thus M340,200-00 + M136,080-00 =
M476,280-00.
53. In making this award, We are aware that Respondent is donor funded.
However, this does not in any way exonerate it from its legal obligations
as an employer in dealing with affairs of its employees. It must at all
times comply with the legal requirements in its trade. We are of the view
that We would be setting a very ruinous precedent if We were to refrain
from making this order, merely on the ground that Respondent is donor
funded. In spite of its circumstances, Respondent must dance to its own
music.
AWARD
We therefore make an award as follows;
a) That the dismissal of applicant is unfair.
b) Applicant is awarded compensation in the sum of M476, 280-00.
c) Compensation to be paid within 30 days of issuance herewith.
d) No order as to cost.
THUS DONE AND DATED AT MASERU ON THIS 10th DAY OF AUGUST
2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MOTHEPU
MISS LEBITSA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. NTABE
ADV. SEKONYELA
LC/47/2012
APPLICANT
AND
STALLION SECURITY
RESPONDENT
JUDGMENT
Claim for unfair dismissal on the ground of the employers operational
requirements. Applicant challenging both the procedural and substantive
aspects of his dismissal that he was not consulted as anticipated by law;
and further that the reason for his dismissal is invalid as it not legally
justified. Court finding in favour of Applicant and awarding compensation.
Court considering the mitigation of loss and breach of contract on the part of
parties in making the compensatory award. Other principles discussed
admissibility of documentary evidence in labour cases. No order as to costs
being made.
BACKGROUND OF THE DISPUTE
1. This is a claim for unfair dismissal for operational reasons. The brief
background of the matter is that Applicant was an employee of
Respondent in the position of Development Manager. He was dismissed
on account of a change in structure which is alleged to have led to the
redundancy of his position.
2. Unhappy with his dismissal, Applicant referred a claim for unfair
dismissal with the Directorate of Dispute Prevention and Resolution
(DDPR). The matter was duly conciliated upon but without success. A
certificate was then issued on 29th October 2012, referring the matter
before this Court.
It is against this background that the matter
proceeded before.
Applicant alone testified on his behalf while
Respondent had two witnesses.
Having considered the evidence
presented as well as parties submissions, Our judgment follows.
EVIDENCE AND FACTS
The case of Respondent
1st witness: Nkhasi Lehloenya
3. Witness testified that he is the Industrial Relations Officer at Respondent.
According to him, Applicant was retrenched because his position had
become redundant, as a result of change in structure. He then narrated
a series of incidents that transpired before the termination of Applicant.
4. Witness testified that Applicant was called for polygraph test by the
management of Leteng Diamonds. He explained that Leteng Diamonds
is a company that mines diamonds and Respondent offers security
services at its mining compound in the Mokhotlong district, and that this
is where Applicant was based. BM1 was tendered as proof that Applicant
was called for a polygraph test. Witness further testified that following
the polygraph examination, Applicant was told that he had failed the
polygraph test. He was further told that Leteng Diamonds management
had demanded that Respondent remove him from its premises.
5. Following the polygraph incident, Leteng then informed Respondent that
it was going to abolish Applicants position as it had no money to pay it.
This was communicated through a letter dated 30th April 2012. The letter
was tendered and marked SS1. Witness added that the contents of the
letter of the 30th April 2012, had on an earlier occasion been hinted to
Respondent by Leteng Management in one of their meetings.
6. Witness further testified that upon receipt of the hint, they informed
Applicant that there was possibility that he would be retrenched. BM2
was tendered as proof. By the time that the letter, SS1 came they started
to engage Applicant in consultative negotiations. During this process,
Respondent had communicated to Applicant the options that it had
considered as alternative to retrenchment. These were to offer him
employment in its posts in South Africa, which proved untenable as
Applicant was not a South African citizen. Secondly, they offered him
employment at Mothae Mine, where they also offer security services,
which also could not work as his position was not available within the
structures at that mine.
7. Witness added that a decision was then taken to retrench Applicant when
all the options that it had considered proved untenable. The decision was
communicated through a letter. The letter was tendered and marked
BM4. It was said that when the decision to retrench Applicant was taken,
Respondent had explored all options short of termination, from April
2012 to July 2012, when the dismissal took effect. It was claimed that in
this period several consultative meetings took place.
8. During cross examination witness stated that in terms of the agreement,
that is contract between Leteng Diamonds and Respondent, Leteng
could not demand that an employee of Respondent be removed or
dismissed. Witness further testified that he only joined Respondent in
May of 2012, and could not deny if it was suggested to him that
consultations did not take place at least before his time. Witness also
accepted that he had no evidence that consultation took place either
before he joined and after he had joined Respondent.
2nd witness: Johan Van Wyk
9. Witness testified that he was the General Manager of Respondent based
in Lesotho until March 2012, when he was transferred to Bloemfontein in
had failed the polygraph/integrity test and until it was eventually stated
to be a change in structure at the instance of the client, Leteng
Diamonds.
35. Clearly there is inconsistency in the evidence of the witnesses of the
Respondent in relation to the reasons for the dismissal of Applicant. This
inconsistency in reasons given, suggests a fabrication of facts on the part
of the Respondent. It is trite law that inconsistencies in evidence are an
epitome of a fabrication of facts. Such facts are in law unreliable and
cannot be used as a basis of any legal decision (see Factory Workers
Union v Ever Unison Garments (Pty) Ltd LC/07/2004). On this premise,
We find that there was no bona fide reason for the dismissal of Applicant.
36. On the aspect of procedure towards the termination of Applicant, We
wish to again comment that they acknowledge and accept the principle in
the Labour Appeal Court authority of Phetang Mpota v Standard Lesotho
Bank (supra), as put by Applicant. We are of the attitude that Applicant
was not consulted prior to his dismissal, at least in the manner
anticipated in the above authority. Evidence presented has been able to
show that Respondent only considered the alternatives short of dismissal
and no more. As a result, the procedural requirements in a dismissal for
operational reasons in the case of Applicant was flawed, and thus unfair.
37. Regarding the relief sought, We are convinced that Applicant has met
the requirements for an award of compensation in terms of section 73(2)
of the Labour Code Order (supra). Applicant has shown the several
attempts that he has made to mitigate his loss, as shown on annexure
BM5. He has also satisfied Us that the Respondent unfairly breached his
contract of employment by dismissing him without a valid reason and in
the procedurally correct manner. We therefore proceed to formulate his
compensatory award.
FORMULATION OF THE AWARD
38. Applicant had asked for 36 months salary equivalent as compensation
for both the procedural and substantive unfairness of his dismissal. The
claimed award was not challenged by Respondent. We therefore see no
reason to deviate from the Applicants claim, particularly because We hold
the view that the circumstances of his dismissal warrant more than what
he has claimed.
39. We say this because Applicants actual loss is almost 36 months
already, without considering his future loss, as well his prospects of
finding a job. Evidence has shown that the prospects are quite bad
because he remained either unemployed or employed but without income,
at least to the end of this matter.
40. For two reasons, We will compute Our award over the claimed period
of 36 months. The first reason is that the law requires that a party be
awarded no more than what it has asked for (see Phetang Mpota v
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. SEPIRITI
ADV. KOTO
LC/74/2013
APPLICANT
AND
PACT LESOTHO
RESPONDENT
JUDGMENT
Claim for unfair dismissal for operational reasons. Applicant claiming that the
correct procedure was not followed in terminating her. Applicant claiming that
if procedure had been observed, she would not have been terminated.
Applicant claiming payment of the remainder of her contract at the time of
termination as compensation. Court finding in her favour and awarding
compensation as claimed. No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is a claim for unfair dismissal, allegedly on the grounds of operation
requirements of the employer. Applicant was an employee of Respondent
on a fixed term contract from 29th September 2010 to 30th September
2014. She was terminated on the 31st July 2013. Unhappy with the
termination she referred a claim for unfair dismissal with the Directorate
of Dispute Prevention and Resolution (DDPR). The claim was duly
conciliated upon but without success. A report of non-resolution was
issued, referring the matter before this Court for adjudication. It is on
the basis of this background that the matter was heard. Having heard
parties, Our judgment follows.
2. It however, important to mention that in opening, Applicant stated that
she challenged the termination of her employment as being procedurally
unfair. She stated that the Respondent failed to follow the due processes
in dismissing her. Further that if the due processes towards her
retrenchment had been followed, she would not have been dismissed.
She claimed payment of the remainder of her contract with all benefits
that she would have accrued but for the termination. We also wish to
add that whereas parties had promised to file their heads of argument,
that did not happen. We were therefore compelled to make this judgment
without them.
FACTS AND EVIDENCE
3. Respondent led the evidence of only one witness by the name of Kholotsa
Moejane, the Country Director, while applicant also testified alone in
Respondents case
witness: Kholotsa Moejane
4. Witness testified that at the time of the incidents in issue, he was country
director at Respondent. He stated that Respondent survives on grants
from the United States government. Further that sometime in January of
2013, Respondent was informed in a meeting with agents of its funder,
that there would be no funding in certain programmes that Respondent
ran. It was said that the funder had changed the programme direction.
5. On or around the 18th March 2013, Respondent management had a staff
meeting where staff was informed about the decision of the funder and its
implications on them. Staff was informed that there was a possibility
that there may be retrenchments, as a result. In that meeting, employees
were also informed that management would be reducing the number of
departments, and merge some of the positions.
6. After the meeting, certain positions were merged and Applicants position
was affected by the merger. The new position that was created by the
merger was advertised and applied for, but Applicant was however
unsuccessful. She was then retrenched along with five others, at the end
of July 2013.
7. During cross-examination, witness testified that the decision to change
the structure of Respondent, was made by management to the exclusion
of staff, among whom is Applicant. Further that employee comments
were only invited after the decision to change the structure had been
made by the management of Respondent, contrary to his earlier version
that consultation started earlier.
Applicants case
Applicant: Boithatelo Ratoane
8. Applicant testified that at the time of her termination, she held the
position of Operations Officer in the department of Finance and
Operations. She stated that sometime, mid-March 2013, Respondent
called a staff meeting. In that meeting, all employees were informed that
there would be no funding beyond October 2013.
9. Also in that meeting, all employees were invited to come up with ideas on
how to save Respondent. They were then divided into groups and
allocated specific areas of focus. On the reporting day suggestions were
made to the country Director who promised to revert to staff with the
attitude of the full management team.
10. Applicant testified further in that to her dismay, the Country Director
never brought feedback as promised, but rather came back to them with
a new structure of Respondent. In terms of the new structure, certain
positions had been merged, some changed except that of the Accountant
and the Country Director.
11. Applicant was thereafter called to country directors office, where she
was told that her position had been merged with two others and that she
would have to apply. She applied and was unsuccessful after having
been promised that the requirement for her to apply, was just a formality.
She was then terminated on 31st July 2013. Her salary was M12,607 at
the time of termination and she asked for payment of salaries and
benefits up to the end of her contract, which was 30th September 2014.
12. Cross examination revealed that Applicant currently works at EGPAF,
where she earns M11,000-00 per month, since June 2014. It further
revealed that she was only out of employment from July 2013 to June
2014.
ANALYSIS
13. In law there are three recognised reasons for termination of the
contract of an employee. These reasons are spelled out under section
66(1) of the Labour Code Order 24 of 1992, as follows:
An employee shall not be dismissed, whether adequate notice is given or
not, unless there is a valid reason for termination of employment, which
reason is
a) Connected with the capacity of the employee ...
b) Connected with the conduct of the employee ...
c) Based on the operational requirements of the undertaking,
establishment or service.
14. In casu, Applicant has been dismissed or terminated under section
66(1)(a) of the Labour Code Order (supra),
and the basis of her
termination is the operational requirements of the employer. However, for
termination under any of the three recognised grounds to be fair, it must
comply with both the substantive and the procedural requirements for a
fair termination. Those requirements are laid out in the Labour Code
(Codes of Good Practice) Notice of 2003.
15.
below the initial salary with respondent. In the period between June
2014 and September 2014, which is about 4 months, she earned less by
M6,428-00, (which is M1,607 x 4 months). The total amount awarded to
applicant is thus M138,677 + M6,428-00 = M145,105-00.
AWARD
We therefore make an award as follows,
a) The dismissal of Applicant is unfair.
b) Respondent is ordered to pay Applicant the compensation amount of
M145,105-00, calculated above.
c) The amount is to be paid within 30 days of issuance herewith.
d) No order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 10th DAY OF AUGUST
2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. TEUOA
MR. MATELA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. PHEKO
ADV. LOUBSER
LC/22/2015
1st APPLICANT
2nd APPLICANT
3rd APPLICANT
4th APPLICANT
5th APPLICANT
AND
TEPONG (PTY) LTD
RESPONDENT
JUDGMENT
Claims for a prohibitory, declaratory and specific performance orders. Parties
reaching settlement on some of the claims and agreement being made an order
of Court. Court finding in favour of Applicants on all the remaining claims
that an offer once accepted creates a binding contract which cannot be
unilaterally altered; and that employer has an obligation to meet welfare
needs of its employees. Court finding that the offer made to Applicants is a
valid contract of employment; and that Respondent has an obligation to
confirm employment status of Applicants. No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for an order in the following terms,
(a) That the 1st and 2nd respondent cannot be ordered to stop
forcing/threatening employees to sign new contract in as much as they
still have valid contracts with respondent.
(b) That this honourable court cannot declare that signing of new contract
with new terms and conditions which are contrary to the Labour Code
and the original contract of employment be null and void.
(c) That the 1st and 2nd respondents cannot be ordered to sign confirmation
of employment for applicants to the bank or elsewhere services required
for the benefit of applicant.
(d) This honourable court declare employment offer as a contract of
employment.
(e) Applicant reserved the right to file further grounds on the proceeding.
2. On the date of hearing parties stated that they had reached an agreement
to abandon prayers (a) and (b). They stated further that they have agreed
that Applicants have no obligation to sign contracts with which they do
not agree. They wished for their agreement to be made an order of this
Court. We then accepted and made the parties agreement an order of
this Court. This essentially meant that We only had to determine prayers
(c) and (d). Having heard parties, Our judgment follows.
SUBMISSIONS AND ANALYSIS
3. Applicants case is that they were offered employment by Respondent,
which they then accepted. Following their acceptance of the offer, they
commenced employment and were accordingly thereafter remunerated in
terms of their offers of employment. Later on, in the course of their
employment, they were called to sign contracts of employment. They then
noted that the terms of the contract were different from those in the offer
of employment, and in particular, that they had inferior terms. An
example was that in the offer of employment, it was stated that employees
would qualify for a thirteenth cheque annually, while in the proposed
contract it was said that they may receive a thirteenth cheque.
Reference was made to annexures A and C2 to the Notice of Motion,
which are the offer of employment and the proposed contract of
employment, respectively.
4. It was further submitted that although the offer was conditional,
Applicants were of the view that the conditions to be satisfied should not
alter the terms against which they accepted the offer of employment. It
was prayed that the Court declare the offers of employment as valid
contracts of employment between Applicant and Respondent. The Court
was referred to the cases of Carlill v Carbolic Smoke Ball Co. (1893) 1 QB
256 and Whitehead v Woolworths (Pty) Ltd (1999) 20 ILJ 2133 (LC). It was
submitted that the principle in these authorities is that an offer once
accepted creates a binding contract between the offeror and the offeree.
5. Further reference was also made to the case of Flyde v Wrench [1840] 49
ER 132, to the effect that, an offer once accepted becomes binding on
parties and that the offeror is prevented in law from unilaterally altering
the terms of the offer, earlier made to the offeree. The Court was further
referred to the case of Francis v Canadian Imperial Bank (1994) 7 C.C.E.L.
(2nd) 1 (Ont. C.A), where the employee had accepted an offer of
employment. Later on, he was given a contract to sign which had altered
some of the terms contained in the initial offer. The terms of contract
which had altered the terms of the offer were declared unlawful and thus
unenforceable.
6. Respondent answered that Applicants were given a conditional offer.
Respondent submitted that in law, unless the condition in the offer is
met, then there is no contract to speak of. The Court was referred to the
heading of the offer, annexure C2, to demonstrate that the offer was
conditional. It was argued that Applicants conduct of refusing to sign
the proposed contracts amounts to non-acceptance of its terms. It was
stated that again in law, non-acceptance of the terms of a contract is a
clear manifestation that parties minds are not ad idem. It was added that
once that is the case, the employment relationship created by the offer,
becomes void ab initio.
Carlill v Carbolic Smoke Ball Co. (supra); Hyde v Wrench (supra); and
Francis v Canadian Imperial Bank (supra). We endorse and agree with the
position presented.
12. The latter authority of Francis v Canadian Imperial Bank (supra), has
gone further to demonstrate that even if conditional, the terms of an offer
are binding on parties and cannot be unilaterally varied by the employer.
This in essence means that Respondents attempt to alter the provisions
of the offer, which was accepted by Applicants, cannot stand in law.
Those accepted terms created a binding contract between the parties. As
a result, the argument by Respondent that, by refusing to sign the
proposed contract, Applicants demonstrated non-acceptance, cannot
hold.
13. We say this because a contractual relationship already existed
between parties, per the accepted offer. The parties minds were ad idem
when the Respondent made an offer, which was accepted by Respondent.
The proposed contract does not mark the beginning of the employment
relationship, but merely seeks to formalise the said relationship. This is
basically the purpose of a contract that follows an accepted offer of
employment. It essence, the position would have been different had the
proposed contract not been preceded by the offer.
14. While We agree with Respondent that a contract of employment only
comes into effect if the offer is accepted unconditionally, the proposition
does not apply in casu. We say this because, Applicants were given an
offer which they accepted unconditionally. That acceptance in Our view
created a contractual relationship between parties.
Therefore, the
authority in Solidarity & Another v SA National Parks (supra), does not
apply in casu.
15. About the principle of Freedom to Contract, it has similarly been
misapplied. The principle dictates that parties to a contract must be
allowed to do so without restrictions from government. The principle is
based on the assumption that contracting parties have equal bargaining
power, skill and knowledge. Where the assumptions are absent, then
intervention is necessary to ensure fundamental fairness for those who
lack the power to bargain, skill and knowledge (see Carolyn Edwards,
Freedom of Contract and Fundamental Fairness for Individual Parties: The
Tug of War Continues, (2009) Law Review Vol. 77:3, 647 at 647-648). In
Our view, the latter position holds.
16. About the terms being inferior, We agree with Applicant. While there
are conditions to entitlement to a thirteenth cheque, but the use of the
word may as opposed to will affects the conditions of entitlement. A
word will, carries a guarantee that if the specified conditions are met,
one will be paid a thirteenth cheque. However, the word may, carry an
uncertainty that lies in the discretion of the employer, to either award or
In
17. We are of the view that if Respondent is of strong opinion that the
effect of the wording in both the offer and the proposed contract is the
same, and that this is just an issue of semantics, then Our finding will
not prejudice them in any manner. In fact, it means that Respondent can
afford to maintain the terms contained in the initial offer of employment
when preparing the proposed contract. The offer of employment accepted
by Applicants constitutes a valid contract between parties.
18. Assuming that We were to hold the Respondents view, We would be
setting a very ruinous precedent both in our legal jurisprudence and
jurisdiction. We say this because, the effect Our decision would be to
encourage employers to deceive potential employees by offering attractive
employment packages, only to alter them when preparing the contracts of
employment. This is one exercise that We do not want to encourage. We
therefore hold that a contract that seeks to formalise the relations
between parties, must not alter the terms contained in their employment
offer, failing which it runs the risk of being set aside.
19. Applicants second claim is that Respondent refused to acknowledge
their employment by declining to sign confirmation of employment forms,
when so required by Standard Lesotho Bank. The Court was referred to
annexure B to the Notice of Motion, which the form in issue. It was
argued that by virtue of being the employer, Respondent is obliged to
confirm the employment status of its employees, when required to do. It
was prayed that Respondent be ordered to confirm the employment
status of Applicants by signing the Standard Lesotho Bank form,
annexure B.
20. Respondent answered that it had no obligation in law to confirm the
employment status of Applicants. It was added that in any event,
Applicants have not signed the proposed contracts and therefore are not
Respondents employees. It was submitted that if they had accepted
employment with Respondent by signing the proposed contracts of
employment, Respondent would have confirmed their status of
employment with Standard Lesotho Bank.
21. We agree with Respondent that there is no law where it is expressly
stated that an employer has an obligation to confirm the employment
status of its employee.
However, We agree with Applicant that
Respondent has an obligation to confirm his employment status for
Standard Lesotho Bank. We say this because in an employment
relationship, parties have duties and obligations to one another. The said
duties and obligations include employee welfare rights. Employee welfare
entails all various services, benefits and facilities due to an employer from
an employee. These include the service and benefit in issue.
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENT:
MR. SEOAHOLIMO
ADV. MOSHOESHOE
LC/25/2015
1st APPLICANT
2nd APPLICANT
3rd APPLICANT
4th APPLICANT
5th APPLICANT
6th APPLICANT
7th APPLICANT
8th APPLICANT
9th APPLICANT
10th APPLICANT
11th APPLICANT
12th APPLICANT
13th APPLICANT
AND
MAMOHAU HOSPITAL
RESPONDENT
JUDGMENT
Application for payment of salaries of Applicants made on urgent basis. Court
finding that the matter is not urgent. Court finding that parties relied on
matters external to the complaint to justify urgency. Further that Applicants
have failed to show that they would not have substantial relief in future.
Court further finding that the basis of the Applicants claims being brought
before this Court was on account of alleged urgency. Having dismissed the
prayer for urgency, Court declining jurisdiction over the claims with terms. No
order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for an order in the following terms,
1. Dispensing with ordinary rules pertaining to the modes and
period of service.
2. A rule nisi be and is hereby issued returnable on the date and
time to be determined by this Honourable Court calling upon respondent to
show case (if any) why an order in the following terms shall not be made
final order in this matter.
(a) That the respondent cannot be ordered to pay applicants and other
employees salary of April 2015 exactly the way it is reflected on their
pay slip issued by respondent.
(b) That the respondent cannot be ordered to make payment
Respondent hospital, where he wrote that there was no reason not to pay
Applicants their salaries.
8. On the second requirement, it was submitted that Applicants were in the
actual apprehension of harm as their salaries were still being withheld.
Further that they were worried that Respondent would continue to
withhold them unless directed otherwise.
It was argued that this
essentially meant that they would continue to suffer unless the Court
intervened. It was added that Applicants were and continued to be
unable to pay their monthly rent, loans and other obligations that
depended on a salary, as a result of the conduct of Respondent.
9. On the last requirement, Applicants argued that they had no alternative
remedy in that if they did not pay their rent, loans and other obligations,
the creditors would go after them and that consequences which cannot be
repaired, will follow.
10. In an application that has been made on urgent basis, the most
important factor is whether the party approaching the court on urgent
basis, cannot and will not obtain substantial redress if the matter is to be
heard on ordinary modes and periods. Supportive of Our view on the
principle is the case of East Rock Trading 7 (Pty) Ltd & another v Eagle
Valley Granite (Pty) Ltd & others [2011] ZAGPJHC 196.
11. At paragraph 6 of the judgment, the learned Notshe AJ had the
following to say,
An applicant party has to set forth, explicitly the circumstances which he
avers render the matter urgent. More importantly, the applicant must state
the reasons why he claims that he cannot be afforded substantial redress
at a hearing in due course. The question of whether the matter is urgent to
be enrolled and heard as an urgent application is underpinned by the issue
of absence of substantial redress in an application in due course.
12. The requirements for urgency are further illustrated in the case of
Aroma Inn v Hypermarkets & Another 1981 (4) SA 108 at 110-111, which
was cited with approval within Our jurisdiction in Motemoka Mokaba v
Security Lesotho (Pty) Ltd LC/98/1995, as being the following,
a) That the circumstances of the matter require that it be heard and
determined on urgent basis; and
b) That if the normal modes and periods of the court are followed, an
applicant party will not obtain the substantial relief.
13. We wish to highlight that the requirements that Applicants have relied
on to argue urgency are in fact requirements for the granting of an
interdict and not for urgency. An interdict is a court order that is sought
to enforce a right, while in approaching a court on urgent basis, a party is
merely asking such a court to hear it/him/her outside the normal court
periods, by expediting the hearing of the matter. Clearly the distinction is
huge and cannot be confused.
19. Applicant argument for the jurisdiction of this Court is primarily based
on their claim that this matter is urgent. This essentially means that if a
declaration is made that the matter is not urgent, as We have done, then
the basis of their claim falls together with its substance. On the strength
of Our finding on the issue of urgency, and the primary basis of
Applicants to bring this claim before this Court, the matter stands to be
dismissed for lack of jurisdiction.
20. We wish to comment that the invocation of section 228 in casu, is
misplaced. In terms of that section, where a party has referred a claim
with the DDPR, they may come and seek interim relief or any urgent relief
pending finalisation of the referred dispute. Clearly that section does not
authorise the initiation of a matter that falls within the jurisdiction of the
DDPR before this Court simply because it is urgent or claimed to be as is
the case in casu. The section is clear that in approaching the Court
under section 228, there has to be pending litigation before the DDPR,
which is not the case in casu.
21. Applicants have conceded that their claim is for unpaid salaries. In
terms of section 226(2), in particular subsection (c) thereof,
The following disputes of right shall be resolved by arbitration
...
(c) a dispute concerning the underpayment or non-payment of monies due
under the provisions of the Act;
Clearly, this is a matter that falls within the jurisdiction of the DDPR to
arbitrate, as the Labour Court clearly lacks such powers.
22. We wish to comment that there is a developing tendency on the part of
parties to abuse court process regarding urgent applications. This is a
bad practice in law which must be stopped. The practice has been
condemned before by this Court and those superior to it. Parties should
not and cannot be allowed to file matters on urgent basis for both flimsy
and inadequate reasons, as in casu.
AWARD
On the basis of the above reasons, We find that,
a) The matter is not urgent.
b) The claim for unpaid wages falls within the jurisdiction of the DDPR.
c) Applicants are at liberty to refer their claims with the DDPR.
d) Should they elect to do so, they must within 30 days of issuance
herewith.
e) No order as to costs is made.
THUS DONE AND DATED AT MASERU ON THIS 10th DAY OF AUGUST
2015
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MRS. RAMASHAMOLE
MS LEBITSA
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENT:
MR. SEOAHOLIMO
NO APPEARANCE
LC/14/2015
1st APPLICANT
2nd APPLICANT
3rd APPLICANT
4th APPLICANT
AND
TEPO EA SECHABA (PTY) LTD T/A
PAY SAVE HYPERSTORES (PTY) LTD
RESPONDENT
JUDGMENT
Claims for unpaid maternity leave and notice pay. Court mero motu raising a
point of law regarding its jurisdiction over the Applicants claims. Parties
agreeing with the Court that the claims relate to unpaid monies and are
arbitrable before the DDPR in terms of section 226(2) of the Labour Code
(Amendment) Act 3 of 2000. Court remitting the matter to the DDPR to be
heard in the merits, with terms. The principle of incidental proceedings being
explained. No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. These are claims for unpaid maternity leave.
All Applicants were
employees of Respondent until their termination. They referred claims for
unpaid maternity leave and unpaid notice with the Directorate of Dispute
Prevention and Resolution (DDPR). These claims were separately referred
under referrals A0713/14, A0675/14 and A0650/14, and were duly
conciliated upon. Conciliation having failed, reports of non-resolution was
issued by the Arbitrators, in the respective referrals, referring them to
this Court for adjudication. All claims were then joined and referred
together under the current application, with this Court.
2. Upon perusal of the Originating Application, and in particular, at
paragraph 12 thereof, We noted that the Applicants substantive prayer
was only for payment of maternity leave. The Applicants prayers are
couched as follows;
1. Directing the respondent to pay the [maternity] leave owed as it was not
paid.
2. Directing the respondent to pay the costs of suit in the event of opposing
this application.
3. Further and/or alternative relief.
leave and unpaid notice, and not the interpretation of the Labour Code
Order (supra) against the Labour Code Wages Order (supra), as the learned
Arbitrators subsequently determined. While the interpretation of these
laws may have become the issue/s, or part thereof, in determining the
Applicants claims, it could not determine jurisdiction as it was not the
claim referred.
9. Further, We wish to comment that in terms of section 226 (2) (b) of the
Labour Code (Amendment) Act (supra), the jurisdiction of the DDPR is only
limited to the application and interpretation of,
(i) a collective agreement;
(ii) a breach of a contract of employment;
(iii) a Wages Order contemplated in section 51;
10. This in essence means that, where a party has referred, as an
independent claim, the application and/or interpretation of any law other
than those stated under section 226(2)(b) Labour Code (Amendment) Act
(supra), the DDPR would be right to decline jurisdiction. We say this
because, not only is the DDPR limited by section 226(2) of the Labour
Code (Amendment) Act (supra), but that such jurisdiction is vested with
this Court in terms of section 226(1).
11. Section 226(1) of the Labour Code (Amendment) Act (supra) provides
that,
(1) The Labour Court has the exclusive jurisdiction to resolve the following
disputes:
(a) Subject to subsection (2), the application or interpretation of any
provisions of the Labour Code or any other labour law;
However because in casu no such independent claim, that falls outside
the scope of authority of the DDPR, has been referred, it cannot therefore
be proper for the DDPR to decline jurisdiction.
12. We wish to add that the law of incidental proceedings provides that a
court can deal with matters in respect of which it would ordinarily not
have jurisdiction to hear and determine. This happens if and when these
matters, that are outside its scope of jurisdiction, are connected to the
merits of the matters that fall within its ordinary jurisdiction. In essence,
this means that for a court to have jurisdiction on account of incidental
proceedings, the subject matter of the incidental matter or issue must be
connected with the principal proceedings on the merits, as is the case in
casu. These matters are said to be incidental to a matter which is already
before court (see Briggs, The Incidental Jurisdiction of the International
Court of Justice as Compulsory Jurisdiction, 1960 at page 89).
AWARD
We therefore make an award as follows:
a) The matter is remitted to the DDPR to be heard in the merits;
b) Parties are left liberty to recommence conciliation proceedings, if they
may so wish;
c) The remittal must be made within 30 days of issuance herewith;
d) No order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 10th DAY OF AUGUST
2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MRS. MOSEHLE
MR KAO
I CONCUR
I CONCUR
FOR APPLICANTS:
FOR RESPONDENT:
MR. LETSIE
ADV. NONO
LC/ENF/131/2013
A0002/2015
APPLICANT
AND
FACTORY WORKERS UNION
RESPONDENT
JUDGMENT
An application for the enforcement of the DDPR award. Respondent claiming to
no longer exist and that warrant is improperly enforced against its former
officer. Court finding that Respondent has amalgamated into a new union and
that the award is enforceable in terms of the Labour Code Order 24 of 1992.
Court further finding that the warrant is properly cited. Court reinstating the
warrant earlier issued. No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the enforcement of the Directorate of Dispute
Prevention and Resolution (DDPR) award in referral A0002/2015.
2. The brief background of the matter is that Applicant was the Deputy
Secretary General in the respondent union, until he was dismissed for
misconduct by Respondent. Unhappy with his dismissal, he referred a
claim for unfair dismissal with DDPR, together with claims for unpaid
wages, underpayments and unpaid leave.
3. An award was later issued in favour of Applicant wherein, Respondent
was ordered to pay to him an amount in the sum of M39, 798-54 within
30 days. When Respondent failed to comply with the award, Applicant
initiated the current proceedings with this Court. A warrant was then
issued against one Seabata Likoti, the General Secretary of the
Respondent union.
4. Subsequent thereto, one Mr. Bohloko, a former officer of the Respondent
union, appeared before Court, armed with a letter from the offices of the
Labour Commissioner, specifically from the Registrar of trade unions. He
stated that the letter indicated that Respondent union was no longer in
existence as it had been dissolved. He argued that the individual, Mr.
Seabata Likoti, who had been cited in the warrant was wrongly so, on this
account. We had then suspended the warrant of detention earlier issued
against Seabata Likoti and summoned both parties to appear and
address Us on the issue. We were duly addressed and having heard the
arguments of both parties, Our judgment follows.
5. We wish to note that the following facts were common cause between
parties. Firstly, that Factory Workers Union (FAWU), National Union of
Textile Workers (NUTEX) and Lesotho Clothing and Allied Workers Union
(LECAWU), amalgamated and formed Independent Democratic Union of
Lesotho (IDUL). For purposes of the amalgamation FAWU was dissolved.
Further, that Seabata Likoti who is the General Secretary of FAWU, is
now the Deputy General Secretary of UDL. Furthermore, those members
of the former FAWU continue to pay subscriptions which are being
received by UDL.
SUBMISSIONS AND ANALYSIS
6. Applicants case is that section 180 of the Labour Code Order 24 of 1992,
provides that an amalgamation of trade unions does not affect the rights
of creditors to individual unions, before the amalgamations and even after
the amalgamation has taken effect. It was submitted that in the case of
Applicant, the current amalgamation is like a change in name. He added
that in terms of section 183, a change in the name of a union does not
affect the rights of its creditors before it changed its name. Applicant
prayed that on these bases he had a right to go after the Deputy General
Secretary of UDL for his claim.
7. Respondent answered that an amalgamation of trade unions is
specifically provided for by section 177 of the Labour Code Order (supra).
He stated that while that section provides that an amalgamation may be
with or without dissolution, the said section does not state what is to
happen where an amalgamation is with dissolution, in so far as creditors
are concerned. It was added that even section 180 which Applicant had
relied upon for his claim, does not state what is to happen in the same
instance. As for section 183, it was said that FAWU did not change its
name, but was rather dissolved and a new union called UDL was formed.
8. Respondent argued that it is therefore improper that Seabata Likoti, the
Deputy General Secretary of UDL is to be detained for acts and deeds of a
non-existent union, which he no longer worked for. The Court was
referred to the case of Chen Yu Bo v Paballo Theko and others
LAC/REV/08/2013, in support of the proposition. It was added that in
the event the Court finds that Seabata Likoti has been properly cited, that
he be given a chance to answer in terms of section 34 of the Labour Code
Order (supra).
9. Applicant replied that the authority of Chen Yu Bo v Paballo Theko and
others (supra), was inapplicable in casu. It was said that the case relates
to a situation Applicant had opened a business after his father had closed
down his own. In that case, the Labour appeal Court found that there
was no connection between the business of the Applicant and his father
and then set aside the decision of the Labour court.
10. It was submitted that the circumstances of that case are different from
those existing in casu. It was stated that FAWU amalgamated with other
two unions, NUTEX and LECAWU to form UDL. It was added that there
is therefore a connection between FAWU and UDL. It was stated that this
is the position irrespective of whether an amalgamation was with or
without dissolution. It was concluded that Seabata Likoti, being the
Deputy General Secretary of UDL, has been rightly cited in the warrant.
11. We have gone through all authorities cited by parties, submissions
and all documents exchanged and tendered. We do confirm that in terms
of section 177 of the Labour Code Order (supra), an amalgamation may be
with or without dissolution. The section is couched as follows,
Two or more registered trade unions or registered employers organisations
may become amalgamated as one trade union or employers organisations,
with or without dissolution or division of the funds of either or any of them,
12. It is common cause that FAWU and two other unions, NUTEX and
LECAWU, amalgamated and formed UDL, and that FAWU was dissolved.
Evidently the amalgamation was done in line with section 177. The effect
of an amalgamation is stated under section 180. In terms of that section,
An amalgamation or Federation of two or more registered trade unions or
employers organisations shall not prejudice any rights of either or any of
those trade unions or employers organisations or any right of creditor of
either or any of them.
13. While the section does not state what is to happen in each specific
event of amalgamation, that is, with or without dissolution, it also does
not exclude its own application in either case. In fact in Our view, the
correct interpretation is that it applies over any type of amalgamation, it
be with or without dissolution.
14. This in essence means that a union or employers organisation formed
through the amalgamation, whether with or without dissolution, has a
right to claim from debtors what was due to the unions that came
together in their own standing. The reverse also applies, that creditors of
the unions that amalgamated can still go after the new union for acts of
the individual union before the amalgamation.
15. Regarding section 183 of the Labour Code Order (supra), We agree with
Respondent that amalgamation and change of name are not one and the
same thing. With amalgamation, a new union is born, while with a
change of name, the union still exists but under a different name. FAWU
did not change a name but was amalgamated with dissolution, giving
birth to UDL. As a result, section 183 does not aid Applicants case.
16. About the authority of Chen Yu Bo v Paballo Theko and others (supra),
We agree with Applicant that it is inapplicable in casu. We say this
because the facts and circumstances differ and therefore the two cases
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
IN PERSON
MR. T. BOHLOKO
LC/REV/80/2013
A0810/2012(b)
APPLICANT
AND
MAMPHO MOTSUSI
DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Six grounds of review raised but reduced to four in argument. Applicant
claiming that it was not heard, that Arbitrator erred by declining jurisdiction,
that Arbitrator erred in not keeping a record of proceedings, and that Arbitrator
erred in adopting a clinical approach. Court only finding merit in one argument
- Arbitrator failed to keep a record. However, Applicant failing to show
prejudice occasioned by failure to keep a record of proceedings. Court not
finding sufficient justification to grant the review. Review application being
refused. No order as to costs being made.
BACKGROUND TO THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A0810/2012 (b). About six grounds of review had been raised on behalf
of Applicant, but reduced to only four in argument. The background of
the matter is that Applicant had employed 1st Respondent in the position
of Bursar, until her termination on 31st July 2012. Unhappy with the
termination, 1st Respondent lodged a claim for unfair dismissal with the
Directorate of Dispute Prevention and Resolution (DDPR), whereat she
challenged both the substantive and procedural aspects of her
termination.
2. 1st Respondent obtained a default award before the DDPR, on the basis of
which she was to be reinstated to her former position in terms of section
73 of the Labour Code Order 24 of 1992. Equally unhappy with the
default award, Applicant lodged a rescission application with the DDPR.
On the date of hearing of the rescission, both parties were made aware by
the learned Arbitrator that the rescission had been filed out of time. It
was at this time that the matter was postponed to another date, with an
order that Applicant must have filed an application for condonation, and
ready to argue the matter by the return date.
3. On the set date of hearing, the learned Arbitrator heard the matter and
subsequent thereto issued an award in terms of which She declined
jurisdiction to hear and determine the rescission application. She had
also reinstated the default award. It is this award that Applicant wishes
to have reviewed, corrected and/or set aside. Both parties were heard
and Our judgment follows.
SUBMISSIONS AND ANALYSIS
4. The first ground of review was that the learned Arbitrator erred by
refusing to hear the explanation by Applicant, for failing to file an
application for condonation. It was said in amplification that on the date
of hearing, Applicant had told the learned Arbitrator that the application
had been made and served upon 1st Respondent, safe that it had not been
filed with the DDPR. It was added that the learned Arbitrator had then
asked Applicant to produce a copy of the application and that this
Applicant was unable to do.
5. Owing to Applicants failure to produce a copy of the application, the
learned Arbitrator concluded that there was no application for
condonation and declined jurisdiction to hear and determine the
Applicants rescission application.
It was submitted on behalf of
Applicant that, the learned Arbitrator should have determined if the
application had been made, moreso since the 1st Respondent did not even
deny service of same. It was argued that Applicant had complied with
Regulation 26 of the Labour Code (DDPR) Regulations of 2001. It was
added that if Applicant had been given the chance to state why it had not
filed the application, the learned Arbitrator would have learned that the
said Regulation had been fully complied with.
6. In answer, 1st Respondent submitted that no application was made as the
record has shown. It was denied that 1st Respondent was ever served
with the alleged application. It was further submitted that, Applicant was
given an opportunity to explain itself before the learned Arbitrator. It was
said that this is why Applicant was asked to produce a copy of the
application as proof that it had been made, but failed to do so.
7. Applicants case is that the learned Arbitrator refused to allow them to
explain why they had failed to file an application for condonation.
Refusal suggests that a request, or at least an attempt, was made to
explain but that such attempt was subdued. From the narration in
support of the claim, nothing points to that. Rather, the narration in
amplification demonstrates that Applicant was heard. This is clear from
Applicants claim before the learned Arbitrator that the application had
been served upon the 1st Respondent. Further demonstrating this, is
their failure to prove same by producing the said application, when
requested to do so by the learned Arbitrator.
8. In Our view, what the learned Arbitrator did was not only an effort to
determine if the application existed, but one that was reasonable in the
postponement, any other route other than the one that was ,adopted
would have gone against the ambition to hear and determine disputes
expediently.
14. We are in agreement that the DDPR Regulations (supra) are silent on
the issue, that is, what is to be done where a rescission has been filed out
of time and without a condonation application. However, where a
regulation or statute is silent on a particular issue, reference is normally
made to other laws such as common law or even case law.
15. The authorities cited by 1st Respondent are clear on the law, or at least
in practice, regarding a rescission application or any application that has
been made in breach of the rules. It is clear that such an application
must first be condoned before jurisdiction to determine can or may arise.
Consequently, the learned Arbitrator could not have been validly expected
to determine the rescission application, as Applicant wants to suggest.
16. We wish to comment with much appreciation that indeed the DDPR
has as its one of the main purports, the idea of speedy resolution of
disputes. While that is the case, speedy resolution should not be at the
expense of justice. The conduct of the learned Arbitrator in casu was well
in line with both the idea of speedy resolution and justice to parties.
Applicant was given an opportunity to make an application for
condonation and was also heard before the decision was taken that it had
not filed a condonation application.
17. We also wish to comment that We agree with Applicant that the
learned Arbitrator should have expressly stated that the rescission
application was dismissed for want of jurisdiction. While We agree with
Applicant on the issue, the effect of the decision to decline jurisdiction is
the same and can at best be cured by seeking direction on the order from
the learned Arbitrator, where parties are doubtful. However, this is an
issue that cannot render the award reviewable.
18. The third ground of review was that the learned Arbitrator erred in
failing to keep a record of proceedings of both the condonation and
rescission applications. It was submitted that dispatched record only
accounts for the default proceedings. It was argued that this is contrary
to Regulation 30 of the DDPR Regulations (supra). It was said that the
said Regulation requires that a record be kept and is couched in
mandatory terms.
19. 1st Respondent answered that while it is true that both the
condonation and rescission application records were not kept, no
prejudice has been shown by Applicant, that was suffered on as a result
of this omission. It was added that, that notwithstanding, the award is
also a record.
20. We have perused the dispatched record and do confirm that it does
not contain both the condonation and rescission proceedings. Evidently,
this is a breach of the DDPR Regulations (supra). Clearly this is an
irregularity on the part of the learned Arbitrator. The Regulation, which
is in mandatory terms, provides that,
The Director shall keep a record of;
(a) any evidence given in an arbitration hearing; and
(b) any arbitration award or ruling made by an arbitrator.
21. However, while We concede that there has been an irregularity, We
also agree with 1st Respondent that Applicant has failed to show that the
irregularity is one that warrants a review of the award. We say this,
because as 1st Respondent has shown, no prejudice has been either
alleged or shown by Applicant. It is now a trite principle of law that while
courts should strive towards ensuring observance of their rules, mere
non-observance without prejudice should not be the decisive factor. Nonobservance must be accompanied by prejudice on the other party to the
proceedings. Consequently, We find that the irregularity committed does
not warrant the granting of a review.
22. The last ground of review was that the learned Arbitrator erred by
adopting a clinical approach in dealing with the Applicants case. It was
argued that Section 25 of the Labour Code (Conciliation and arbitration)
Guidelines of 2004, provides that an effort must be made to deal with the
substantive aspect of the dispute. It was argued that the learned
Arbitrator did not make the anticipated effort as She dismissed the
matter purely on technicalities.
23. It was added that had the learned Arbitrator allowed Applicant to
explain his failure to file the condonation application, the outcome would
have been different. It was stated that given a chance, Applicant would
have explained that it failed to file the condonation application because
1st Respondent had not responded to it, and that as such the matter was
not ripe for hearing.
24. 1st Respondent answered that the learned Arbitrator was not clinical in
Her approach. It was submitted that in fact, She made all reasonable
efforts to deal with the substantive aspect of the dispute. It was
submitted that Applicant was allowed to file a condonation application,
and later allowed to produce proof of the existence of the condonation
application, which it failed to do. It was argued that this is evidence of
non-insistence on the legal formalities, because Applicant was given
multiple chances which it thwarted. It was argued that the learned
Arbitrator did right by declining jurisdiction as Her hands were tied due
to failure to exercise opportunities by Applicant given to it.
25. We are conscious of the spirit and purport of the DDPR Conciliation
and Arbitration Guidelines (supra). In fact that is the same idea behind
the establishment of this Court. Both the Labour Court and the DDPR
are specialised institutions, one being a tribunal and the other a court
respectively, meant to dispense substantial justice. As a result, they both
differ substantially from other institutions that dispense justice. Having
said this We shall now address the arguments.
26. We agree with 1st Respondent that the learned Arbitrator made all
reasonable efforts to deal with the substantive aspect of the dispute.
Evidence has shown that after the default award, Applicant filed a
rescission application. The said application was not thrown out of court
for being late, but rather, Applicant was given a chance to apply for
condonation. Further having failed to file the said condonation, Applicant
was given a chance to produce proof that such an application existed.
This in Our view was a reasonable effort on the part of the learned
Arbitrator to execute the spirit and purport of the DDPR. The learned
Arbitrator, evidently avoided a strict application of the law.
27. We also wish to comment that We have already ruled that there is no
evidence that Applicant was refused the opportunity to explain why the
condonation application was not filed. However, assuming that such
opportunity was refused, the explanation intended to be given would not
have sustained. We say this because the filing of an application does not
depend on the other party reacting to it. If this were to be the case, it
would mean that parties to any litigation can just undermine the due
processes by not reacting to the other partys claim. This is unheard off
and therefore fails to stand.
AWARD
We therefore make an award as follows:
a) The review application is refused.
b) The award in referral A0810/12 (b) stands.
c) The award is to be complied with within 30 days of issuance herewith.
d) No order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 10th DAY OF AUGUST
2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MATELA
MRS. MOSEHLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. RAFONEKE
ADV. MOSHOESHOE
LC/REV/161/2013
C0035/2013
APPLICANT
AND
MAPESELA MOEJANE
DDPR
B. MOKITIMI: ARBITRATOR
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
JUDGMENT
Application for the review of the arbitration award. Two grounds of review
having been raised on behalf of Applicant that the learned Arbitrator made a
wrong conclusion on the facts; and that the learned Arbitrator failed to apply
her mind to the factors to consider in assessing compensation. Court not
finding merit in the review grounds and refusing the application. Award of the
DDPR being reinstated.
No order as to costs being made. Principles
considered: distinction between an appeal and review; and factors to consider
in awarding a just and equitable quantum of compensation.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the DDPR award in referral
C0035/13.
Two grounds of review have been raised on behalf of
Applicant namely that the learned Arbitrator misdirected herself by
concluding that refusal to accept service of notification of hearing was
reasonable; and that the award of compensation was made without
proper application of the mind to the factors prescribed under the Labour
Code Order 24 of 1992.
2. The brief background of the matter is that 1st Respondent was an
employee of Applicant until he was dismissed for misconduct. Unhappy
with his dismissal, he referred a claim for unfair dismissal with the
Directorate of Dispute Prevention and Resolution (DDPR). An award was
thereafter issued in his favour. Equally unhappy with the decision,
Applicant initiated the current proceedings for the review, correction
and/or setting aside of the award in issue. Both parties were in
attendance and made presentations. Having heard them, Our judgment
follows.
15. Further, We wish to comment that the learned Arbitrator has justified
Her conclusion why She found that 1st Respondent acted reasonably in
refusing service. As referenced by 1st Respondent this is contained at
paragraphs 21 24 of the arbitration award.
16. Specifically at paragraph 22, the following is recorded,
Applicant himself said when he was suspended he was told that he could
be called or they would come to his place whenever they needed him. This
evidence was left unchallenged. This leaves us with the opinion that
applicant did not act unreasonably by refusing to accept the notice that
was served at any place other than his place of residence since he was
instructed to stay at his place of residence during working hours where
respondent knew they would find him whenever they needed him.
17. Regarding the compensatory award, We have also considered the
provisions of section 73 (2) of the Labour code Order (supra). We do
confirm that the said section provides that:
In assessing the amount of compensation to be paid, account shall also be
taken to whether there has been any breach of contract by either party and
whether the employee has failed to take such steps as may be reasonable
to mitigate his or her losses.
18. At page 26 of the arbitration award under the heading FORMULATION
OF THE AWARD, the learned Arbitrator justified the award made to 1st
Respondent. In Her justification, the learned Arbitrator makes reference
to a number of factors which include:
i. The remainder of the contract.
ii. Breach by 1st respondent.
iii. 1st respondents age.
iv. 1st respondent qualifications.
v. Mitigation of loss by 1st respondent.
vi. Cases of Standard Lesotho Bank v Morahanye LAC/CIV/A/06/2008
and Khoai Matete v Institute of Development Management
LC/46/2000.
19. In Our view this is evidence of both consideration and application of
mind to the relevant factors in determining an award of compensation
that is both fair and equitable. We therefore find that the learned
Arbitrator did not err.
AWARD
We make the following award.
a) The review application is refused.
b) The award of the DDPR is reinstated.
c) Award to be complied with within 30 days of issuance herewith.
d) No order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 31st DAY OF AUGUST
2015
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MOTHEPU
MISS. LEBITSA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
ADV. LOUBSER
ADV. MACHELI
LC/REV/26/2014
A0626/2013
APPLICANT
AND
RORISANG MOREKI
DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for the review of arbitration award. Applicant claiming failure to
apply a mind on the part of the learned Arbitrator. Court finding that the
learned Arbitrator duly applied Her mind to the facts and evidence before Her,
and the applicable legal principles. Court refusing the review application and
reinstating the award of the DDPR. No order as to costs being made.
BACKGROUND OF DISPUTE
1. This is an application for the review of the arbitration award in referral
A0626/2013. Two grounds of review, both involving a claim for failure to
apply a mind to the facts and evidence.
2. The brief background of the matter is that 1st Respondent was an
employee of Applicant until she was dismissed for misconduct. She was
dismissed for driving the Applicants motor vehicle without authorisation.
Unhappy with the dismissal, 1st Respondent referred a claim for unfair
dismissal with the Directorate of Dispute Prevention and Resolution
(DDPR). The matter was duly heard and an award later made in favour of
1st Respondent.
In terms of the award, Applicant was to pay
st
compensation to 1 Respondent for unfair dismissal.
3. Equally unhappy with the award, Applicant initiated the current
proceedings, wherein it sought the review, correction and/or setting aside
of the award in issue. Both parties made representation and having
heard them, Our judgment follows.
SUBMISSIONS AND ANALYSIS
4. Applicants case is that the learned Arbitrator rightly made a finding that
Applicant was not authorised to drive the Applicant vehicle. The Court
was referred to paragraph 10 of the arbitration award for the finding. It
was added that notwithstanding this finding, the learned Arbitrator later
made a conclusion that the dismissal of 1st Respondent was substantively
unfair. It was argued that this was contrary to both logic and section 10
of the Labour Code (Codes of Good Practice) Notice of 2003.
5. It was argued that in making this erroneous conclusion, the learned
Arbitrator wrongly relied on the case of Thabo Mpakanyane v Ministry of
Communications, Science and Technology and the Attorney General
LC/PS/A/01/2010. It was submitted that the above authority related to
a challenge on procedural fairness and not substantive fairness. It was
added that, it was thus improper for the learned Arbitrator to have relied
on this authority to determine the substantive fairness of the dismissal of
1st Respondent.
6. It was argued that the substantive and procedural fairness of a dismissal
are two different aspects and that one cannot affect or influence the
other.
It was stated that they should therefore be dealt with
independently. The Court was referred to the case of Standard Lesotho
Bank v Morahanye LAC/CIV/A/06/2008, where a distinction was made
between these two aspects of a dismissal. It was added that at best, the
learned Arbitrator should have found the dismissal substantively fair but
procedurally unfair, and not as She did.
7. 1st Respondent answered that in casu, she had been found to have
committed the misconduct but not that her dismissal was fair. It was
stated that this was the also the attitude of the disciplinary panel. It was
added that this was evident in its finding of misconduct, where
disciplinary the panel recommended the sanction of a final written
warning. It was stated that contrary to the recommendation, the sanction
was altered to dismissal by Applicant management.
8. It was submitted that the learned Arbitration, having applied Her mind,
found the conduct of Applicant both arbitrary and irregular and found
the dismissal to be both substantively and procedurally unfair. The
Court was referred to paragraph 12 of the arbitration award. It was
concluded that there was no irregularity.
9. We have gone through the arbitration award and specifically at paragraph
10. In that paragraph the learned Arbitrator makes a finding that
Applicant committed the misconduct and no more. This is reflected as
such,
It follows therefore that applicant has failed to discharge her burden and
this tribunal can safely conclude that applicant was not authorised to drive
the company vehicle, an act that led to her dismissal.
10. We have not found anywhere in the award where a conclusion was
made that the dismissal was substantively fair as alleged by Applicant.
As rightly pointed out by Applicant, section 10 of the Codes of Good
Practice (supra), provides the steps to be taken in determining the
substantive fairness of a dismissal. These steps are in addition to
whether or not an employee committed a misconduct.
AWARD
On the basis of the above reasons, We find that,
a) The learned Arbitrator committed no irregularity but fully applied Her
mind.
b) The review application is therefore dismissed.
c) The award of the DDPR is reinstated.
d) The award must be complied with within 30 days of issuance herewith.
e) No order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 31st DAY OF AUGUST
2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MRS. MOSEHLE
MR KAO
I CONCUR
I CONCUR
FOR APPLICANT:
FOR 1st RESPONDENT:
ADV. THANTI
MS. MOSOLA
LC/REV/37/2014
A1051/2013
APPLICANT
AND
TEPONG (PTY) LTD
THE DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for the review of arbitration award. Two grounds of review having
been raised unwarranted adherence to a fixed principle of law and mala
fides. Only one ground of review succeeding. Court granting the review
application and remitting the matter to the DDPR for a hearing de novo before
a different arbitrator with terms. No order as to costs being made. Principles
considered - finality to litigation, res judicata, once and for all, and the effect of
a settlement agreement in unfair dismissal cases.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A1051/2013. Only two grounds of review have been raised on behalf of
Applicant namely, unwarranted adherence to a fixed principle of law and
mala fides.
2. The brief background of the matter is that Applicant was an employee of
1st Respondent until he was dismissed. Unhappy with the dismissal, he
referred a claim for unfair dismissal with the Directorate of Dispute
Prevention and Resolution (DDPR), wherein he claimed reinstatement.
However, the matter was resolved by settlement agreement on the 29th
August 2013. In terms of the settlement, parties had agreed on payment
of four month salaries in full and final settlement of the claim. The
settlement has since been honoured.
3. Subsequent thereto, Applicant referred a claim for payment of gratuity
under referral A1051/2013, which resulted in the award subject of
review. The matter was not opposed but Adv. Moshoeshoe, allegedly for
1st Respondent, was before Court to confirm same, and to observe the
proceedings. Having heard Applicants case, Our judgment follows.
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. NONO
ADV. MOSHOESHOE
LC/REV/11/2015
A0079/2014
APPLICANT
AND
PHEELLO NTHAKENG SELINYANE
DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of arbitration award. Six grounds of review having been
earlier raised. 1st Respondent challenging them as being appeal disguised as
review. Court finding merits in argument at least in relation to three grounds.
Applicant succeeding on the remaining grounds of review and Court granting
the review. Award being set aside and matter being remitted to the DDPR to
heard de novo before a different arbitrator with terms. No order as to costs
being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A0079/2014. Six grounds of review had been raised on behalf of
Applicant but only three were argued. The matter was duly opposed and
both parties were in attendance and did make presentation.
2. The brief background of the matter is that Applicant had employed 1st
Respondent in the position of a Lecturer. He was dismissed after being
found guilty of dereliction of duty. Unhappy with his termination, 1st
Respondent had then referred a claim for unfair dismissal with the
Directorate of Dispute Prevention and Resolution (DDPR). Conciliation
was duly conducted, at the end of which no resolution had been reached.
3. The learned Arbitrator is claimed to have then, on his motion, raised a
point in limine and required parties to address him on it. The point was
whether it was correct or not, in law, for ASAC to enhance the disciplinary
sanction of a final written warning that was recommended by the chairman
of the disciplinary inquiry against applicant to a more severe sanction of
dismissal as was confirmed by the Council. In the end, an award was
issued wherein the Applicant was ordered to reinstate 1st Respondent
without loss, in terms of section 73 of the Labour Code Order 24 of 1992.
It is this award that Applicant wishes to have reviewed, corrected and/or
set aside.
while it was clear that the 1st respondent did not render any services for
the said amount.
5.4 the learned arbitrator erred and misdirected himself in law by ordering
the [applicant] to reinstate the 1st respondent on a specific day without first
having heard evidence as to whether reinstatement would be practicable
considering that the 1st respondent has not been in the employment of the
application for about fifteen months at the time of the award.
5.5 The learned arbitrator erred and misdirected himself in not enquiring
whether or not there [was] incompatibility between the parties.
5.6 The learned arbitrator erred and misdirected himself in law by holding
as he did that application had failed to prove that there is a law that
empowers its ASAC to enhance disciplinary sanctions while in fact that the
respondents had proved that based on NUL statute 40 and the judicial
precedents.
14. We wish to note that We accept the position of Lord Brightman in the
case of Chief Constable of North Wales Police v Evans (supra), that,
Judicial review is concerned, not with the decision but with the decision
making process. Unless that restoration on the power of the court is
observed, the court will in my view, under the guise of preventing abuse, be
itself guilty of usurping power.
15. In fact a similar view is expressed in the case of J. D. Trading (Pty) Ltd
t/a Supreme Furnishers v M. Monoko and Others LAC/REV/39/2004. At
paragraph 13 the Court stated that:
The reason for bringing proceedings on review is the same as the reason
for taking them on appeal, namely to set aside a judgment already given.
Where the reason for wanting to have the judgment set aside is that the
Court came to the wrong conclusion on the facts or the law, the appropriate
remedy is by way of appeal. Where, on the other hand, the real grievance
is against the method of the trial it is proper to bring the case on review.
16. In the same authority, at paragraph 16, the Court relies on a
quotation from the case of Johannesburg Stock Exchange and Another v
Witwatersrand Nigel Ltd and Another (supra), which 1st Respondent has
relied upon to demonstrate what constitutes reviewable irregularity,
similarly with the intention to provide a guide as to what is reviewable
and not. What is clear from the quotation is that only procedure is
subject to review.
17. We have considered the grounds raised as well as the submissions of
parties. We agree with 1st Respondent, at least to some extent that the
grounds raised on behalf of Applicant are appeal disguised as review.
This relates to grounds 5.1, 5.3 and 5.6. We will now demonstrate how
this is so.
18. All these grounds are concerned with the conclusion and not the
method of trial. Ground 5.1 merely alludes to the fact that the learned
Arbitrator was wrong to have found that 1st Respondent had been
DATED
AT
MASERU
ON
THIS
21st
DAY
OF
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MOTHEPU
MRS. THAKALEKOALA
I CONCUR
I CONCUR
FOR APPLICANT:
ADV. MOLISE
ASSISTED BY
ADV. LEHLOENYA
ADV. KOMETSI
FOR RESPONDENT:
LC/REV/131/2013
A0594/2013
APPLICANT
AND
U SAVE SHOPRITE (PTY) LTD
DDPR M. MASHEANE
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for the review of the arbitration award. Applicant having filed
additional grounds of review. 1st Respondent applying that the additional
affidavit be disregarded as it is contrary to the Rules of this Court. Court
finding merit in the argument and disregarding the Applicants additional
affidavit. Court directing that parties proceed to argue the review on the basis
of the grounds contained in the main motion. Court raising a point in limine on
own motion that grounds raised are disguised appeal. Court maintaining its
stance and dismissing the application for want of jurisdiction. Court further
finding confidence in its decision for lack on merit on the grounds, even if they
were to be treated as review grounds. No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A0594/2013. Several grounds of review had been raised on behalf of
Applicant but only three were argued.
2. The brief background of the matter is that Applicant was an employee of
1st Respondent until she was dismissed for misconduct. Unhappy with
the decision, she referred a claim for unfair dismissal with the Directorate
of Dispute Prevention and Resolution (DDPR).
3. An award was later issued wherein, the Applicants claim was dismissed.
It is this award that Applicant wishes to have reviewed, corrected and/or
set aside. Both parties were present and duly made presentations.
Having heard therein, Our judgment follows.
4. We wish to note that two points in limine were raised during the
proceedings. One point was raised by 1st Respondent and it primarily
placed an attack on the additional affidavit which purported to add review
grounds. The other point was raised by the Court on own motion, and it
21. We wish to note that there is a concession that the grounds raised do
not make out a case for review, at least prima facie. The Applicant has
attempted to justify the approach that she adopted in framing her review
grounds, by relying on the authority of J. D. Trading (Pty) Ltd t/a Supreme
Furnishers v M. Monoko and Others (supra).
22. We have carefully considered the authority and disagree with
Applicant that it dictates that the reason given for the complaint,
determines if a claim is a review or appeal. The proper interpretation is
rather on the contrary, that is, that the reasons follow to justify the prima
facie established review ground. There is nothing in the grounds raised,
or any suggestion prima facie, that the complaint is procedural and
therefore a reviewable irregularity. We are therefore of the view that the
grounds raised are infact appeal and not review.
23. In terms of section 228E (5) of the Labour Code (Amendment) Act 3 of
2000, the awards of the DDPR,
.....shall be final and binding and shall be enforceable as if it was an
order of the Labour Court.
24. They are however, only subject of review before the Labour Court, in
terms of section 228F (1) of the Labour Code (Amendment) Act (supra).
The section is couched as follows,
Any party to a dispute who seeks to review any arbitration award issue
under this part shall apply to the Labour Court for an order setting aside
the award.
25. The above position of the law has been confirmed in the case of Thabo
Phoso v Metropolitan Lesotho LAC/CIV/A/10/2008, where the Labour
Appeal Court had this to say,
In my opinion this is a ground of appeal and not review. The Labour Court
is not empowered to entertain appeals from the DDPR. It might be the
Labour Court have come to a different decision from that reached by the
DDPR on the issue whether or not to grant rescission. However, the Court
was not entitled to intervene in these regard as no reviewable irregularity
was disclosed by the facts.
26. On the basis of the above said, We find that We have no jurisdiction to
determine the grounds raised. We are ousted by their nature from
determining them.
27. We find confidence in Our decision to dismiss the Applicants review
because, even if We were to consider the grounds as if they were review,
they would not stand for want of merit. We say this because We have had
the opportunity to hear both the Applicant and Respondents case on the
merits as well.
28. Regarding the first ground of review, Applicant claimed that the
learned Arbitrator erred in holding that the sanction was not too harsh.
She however, did not dispute when 1st Respondent answered that it was
not one of the issues that Applicant had complained about. If this is the
case, the learned Arbitrator cannot be placed at fault for what she had
not been requested to determine.
29. Supportive of Our conclusion is the decision of the Labour Appeal
Court in the case of Tsotang Ntjebe & others v Lesotho Highlands
Development Authority and Telang Leemisa & others v Lesotho Highlands
Development Authority LAC/CIV/17/2009, where the Court in addressing
the issue of complaints at an appeal level against what was not raised
before the court a quo, had this to say,
Of course as correctly stated by LEWIS, A.J.A. in Sager Motors (PTY) LTD v
Patel 1968 (4) SA 98 (RA) at 104, it is not open to an appellant, in the
absence of an amendment to his application, to claim on appeal something
which he did not claim in the Court a quo,
30. On the second ground of review, Applicant claimed that the learned
Arbitrator confirmed the dismissal of Applicant on the ground that she
had contravened a rule. It was stated that the learned arbitrator had
earlier stated that the said rule did not apply to Applicant but
nonetheless found Applicant guilty of misconduct. Respondent denied
that the learned Arbitrator did not make that finding, at least as Her
award reflects. It was stated that Applicant was dismissed for submitting
a fake sick note, which is a crime of dishonesty.
31. Evidently, Applicant does not dispute the misconduct, but is rather
concerned with the rule against which she was dismissed. Taking
Applicants argument that the learned Arbitrator did at some point rule
that the rule relied upon did not apply to Applicant, that does not alter
the position of Applicant. We say this because in Our law, specifically
section 10(2) of the Labour Code (Codes of Good Practice) Notice of 2003,
gross dishonesty is a dismissible offence.
32. Section 10(2) of the above authority provides that,
Although it is generally not appropriate to dismiss an employee for a first
offence, dismissal may be justified if the misconduct is serious and of such
gravity that it makes a continued employment relationship intolerable.
Without being exhaustive, the following acts have been considered by the
courts to be sufficiently serious to justify dismissal:
(a) gross dishonesty;
33. Therefore, it did not matter whether the rule was written in the 1st
Respondent rules or not, as the Codes of Good Practice (supra) sanction
the punishment of dismissal where gross dishonesty has been committed.
34. On the third review ground, Applicant claims that the learned
Arbitrator erred in concluding that there was no consultation with the
union before Applicant was disciplined. 1st Respondent was however,
able to contradict the claim by showing that the union was consulted
before the hearing took place. Both parties referred the Court to pages 23
to 27 of the record of proceedings, both in support of their individual
cases.
35. At page 23 of the record, the evidence of the contents of an e-mail
directed to Mr. Ramochela of the Applicants union, sent to him on the 1st
of May 2013 are reflected in an exchange between one Mokete and
Matebello as thus,
Mokete: Please read it for us.
Matebello:
it is then written Mr. Ramochela my below email refers you
have to date not confirmed my invitation to discuss the matter below even
though the Shop Steward has been paid on suspension since the 18 th April
2013.
Due to financial costs that the company is incurring for paying this
employee on suspension I have no option but to proceed with the
disciplinary hearing on the 2nd May 2013 at 09:00 AM at Kings way.
36. Evidently, the Applicants union was consulted about the disciplinary
issues concerning Applicant. From the reading of the e-mail referenced,
it was just a follow up and/or a reminder to the union that since the
initial communication, they have not done or said anything regarding the
issues involving Applicant. in the light of this clear evidence, the learned
Arbitrator was bound to reach the conclusion that she did, specially that
the union had been consulted.
37. On the basis of these above said, We maintain Our stance that not
only are grounds raised appeal disguised as review, but that they lack
merit. We are confident that Our attempt to show the absence of
prejudice on the part of Applicant in Our decision to dismiss the review,
has further gone to show clearly that the grounds raised are based on the
conclusions on the merit and not the procedure. Consequently, the
review is dismissed.
AWARD
We therefore make an award as follows:
a) That the grounds raised on behalf of Applicant are appeal and not review,
b) That the review application is dismissed for want of jurisdiction,
c) The award of the DDPR remains in force, and
d) That no order as to costs is made.
THUS DONE AND DATED AT MASERU ON THIS 7th DAY OF SEPTEMBER
2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MRS. RAMASHAMOLE
MISS LEBITSA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. NONO
ADV. RAFONEKE
LC/REV/109/12
A0143/2012
APPLICANT
AND
MALISEMA MAKOA
NKAKU KABI
MAMASWATI SOPENG
THE DDPR
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
4th RESPONDENT
JUDGMENT
Application for review of arbitration award. Four grounds of review having
been raised - that award lacked both a legal basis and consideration;
ignorance of evidence; failure to apply mind; and ultra vires. Court not finding
merit in all grounds raised and refusing the review application. Principles
considered; the rule in motion proceedings, legitimate expectation, and
considerations in assessing a fair and equitable award. No order at to costs
being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A0143/2012. The brief background is that the 1st to 3rd Respondents
were employees of Applicant until their contracts terminated by effluxion
of time. Subsequent thereto, they referred claims for unfair dismissal
with the Directorate of Dispute Prevention and Resolution (DDPR),
whereat they claimed non-renewal of their fixed term contracts when they
legitimately expected renewal.
2. The claims were duly heard and finalised, and an award later issued. In
terms of the award, Applicant was ordered to compensate 1st to 3rd
Respondents with an amount equivalent to their two years salaries.
Dissatisfied with this award, Applicant initiated the current proceedings.
The matter has been duly opposed and having heard both parties, Our
judgment follows.
SUBMISSIONS AND ANALYSIS
3. The first ground of review was argued together with the third one. It was
Applicants case that the learned Arbitrator had erred by awarding the
quantum of compensation that She did. It was submitted that the
20. In that six months and beyond, the requirements under section 73(2)
of the Labour Code Order (supra), remain binding on the dissatisfied
employee. It would thus defy the dictates of both section 73(2) and
section 227(1)(a), to conclude that applying for a job in issue extinguishes
an expectation. This is more so where an employee has demonstrated
either their dissatisfaction with being terminated, or have shown their
intention to challenge their termination.
21. The fourth ground of review was that the learned Arbitrator failed to
apply Her mind to the facts before Her. It was argued that failure to
apply a mind is a reviewable irregularity. The Court was referred to the
case of Telecom Lesotho (Pty) Ltd v Seqao Phenya LC/REV/10/2010, in
support of the proposition.
22. In amplification of the argument, it was submitted that the learned
Arbitrator failed to apply Her mind to the law on amount of
compensation. Further that She had also failed to apply Her mind to the
fact that though no appraisals were made for purposes of determining the
renewals of Respondents. Furthermore, that She failed to apply her mind
to the fact that Respondents did not have a clean record as they had final
written warnings, and that this ought to have contradicted their
expectation. Applicant added that although these said were not pleaded
in their Motion, the Court should consider them as this is a Court of
equity and fairness.
23. Respondents answered that in law one must stand and fall by their
pleadings to avoid taking others by surprise. It was submitted that they
were being taken by surprise as these facts and arguments were not
pleaded by Applicant. It was prayed that they should not be considered.
24. We agree with Respondents that in motion proceedings, one is
confined to their pleadings. In the case of Pascalis Molapi v Metro Group
Ltd (supra), the Court stated that it is irregular for a court to allow a party
to canvass issues not pleaded. (Also see Netherbum Engineering CC t/a
Netherbum Ceramics v Mudau No. and another (2009) 30 ILJ 279 LAC at
paragraph 25, Thabo Phoso v Metropolitan Lesotho LAC/CIV/A/10/2008,
Plascon-Evans Paints (TVL) Ltd v Van Riebeck Paints (Pty) Ltd 1984 (3) SA
623).
25. The effect of Our attitude is that the Applicants review ground stands
unsubstantiated.
It is trite law that bare allegations without
substantiating facts and arguments are unconvincing and unsatisfactory.
They simply cannot be relied upon to make a conclusion that affects
another (see Mokone v Attorney General & others CIV/APN/232/2008).
Consequently, this ground stands to fail as well.
26. The last ground of review was that the learned Arbitrator acted ultra
vires by holding that it was alarming that Respondents were not called for
an interview by Applicant. It was argued that in so doing, the learned
AWARD
We therefore find that,
a) The review application is refused.
b) The award of the DDPR is reinstated.
c) The award is to be complied with within 30 days of issuance herewith.
d) No order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 10th DAY OF AUGUST
2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MRS. MOSEHLE
MRS. THAKALEKOALA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. MACHELI
ADV. MOSOTHO
LC/REV/47/2011
A0024/2011
APPLICANT
AND
BOLIBA MULTI-PURPOSE CORPORATION
DDPR ARBITRATOR (M SENOOE)
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for the review of arbitration award. Several grounds of review
having earlier been raised on behalf of Applicant but reduced to only three
that Arbitrator failed to make relevant considerations; that Arbitrators
decision is unreasonable; and that Arbitrators decision is arbitrary. Court
finding merit in only one ground that Arbitrator failed to make relevant
considerations. Court granting the review and ordering the remittal of the
matter to the DDPR for a determination of the compensation amount before a
different arbitrator. No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A0024/2011. Several grounds of review had been raised on behalf of
Applicant. However, they were only reduced to three in argument
namely, failure to take into account relevant considerations,
unreasonableness and arbitrariness.
2. The brief background of the matter is that Applicant was an employee of
the 1st Respondent until he was dismissed for misconduct. Unhappy with
in dismissal, he referred a claim for unfair dismissal with the Directorate
of Dispute Prevention and Resolution (DDPR). Conciliation was duly
conducted, but did not resolve the matter. It was thus arbitrated upon
and an award was later issued in favour of Applicant. In terms of the
award, 1st Respondent was to be paid compensation in the sum of
M20,895,00. This was following a finding that the dismissal had been
substantive fair but procedurally unfair.
3. Similarly unhappy with the award, Applicant referred a review application
with this Court. He sought the review, correction and/or setting aside of
the award in issue. The application was approved by 1st Respondent, but
it delayed to file its answer. Sentient of this, 1st Respondent filed an
application for condonation for the late filing of its answer.
The
Evidence shows that applicant was given a shorter notice than the
prescribed in the respondent policy. Respondent does not deny it. Applicant
filed an appeal and respondent never attended to it alleging it was filed out
of time. This amounts to procedural irregularity as well. Applicants
dismissal was procedurally unfair. Applicant is entitled to three months
salary as compensation for procedural irregularity .
10. However, We do confirm that nothing has been said about mitigation
of loss on the part of the Applicant. Evidently, the learned Arbitrator has
acted contrary to the provisions of section 73 (2) of the Labour Code Order
(supra), in fixing Her award for compensation, to this extent at least. We
are of a similar sentiment with Applicant that if considered, this factor
could have influenced the learned Arbitrators conclusion to either reduce
or increase the compensatory award given. In law, this is sufficient to
warrant the granting of a review. This ground is therefore upheld.
11. The second ground of review was that the learned Arbitrators decision
to award compensation over the principal remedy of reinstatement, under
section 73 (1) of the Labour Code Order (supra), was unreasonable. It was
argued that in law, once a finding is made that the dismissal is unfair,
the learned Arbitrator is obliged to award reinstatement.
It was
submitted that an exception is where the employee does not wish to be
reinstated, or if the employer has adduced factors that hinder the
granting of that order. The Court was referred to the case of Pascalis
Molapi v Metro Group Ltd & others LAC/CIV/REV/09/2003, in support of
this proposition.
12. It was argued that in casu, Applicant, on the one hand, was clear that
he wanted to be reinstated to his former position in terms of section 73(1)
of the Labour Code Order (supra). It was added that the 1st Respondent,
on the other hand, had not led any factors that negate the granting of the
principal remedy of reinstatement. It was argued that having made the
conclusion that the dismissal was procedurally unfair, it logically followed
that reinstatement be awarded as section 73 (1) made it mandatory. It
was submitted that the award of the learned Arbitrator was unreasonable
in this respect. It was prayed that the Court correct the award by
ordering the reinstatement of Applicant.
13. It was submitted that although 5 years have lapsed since the dismissal
of Applicant, but that the length of the period should not influence the
Court into finding that reinstatement has become impracticable. It was
said that in the authority of Pascalis Molapi v Metro Group Ltd & others
(supra), an employee was reinstated after 16 years of the dismissal, which
is 9 years more than the period that Applicant has been out of
employment with 1st Respondent.
14. We have perused the arbitration award and confirm that indeed a
finding was made that the dismissal of Applicant was unfair. However,
this was only in relation to the procedural aspect of his dismissal. This is
captured under the heading AWARD as follows,
(1) Applicants dismissal is substantively fair but procedurally unfair.
15. The substantive aspect of a dismissal, on the one hand, accounts for
the validity of the reason behind the dismissal. That is, whether the
reason is or was sound in law, or if it was one that is sanctioned in law.
The procedural aspect of the dismissal, on the other hand, accounts for
the procedure adopted in finding the guilt of an employee. Therefore in
Her finding, the learned Arbitrator found that the 1st Respondent was
justified in dismissing Applicant, but that even so the wrong method was
used, or that 1st Respondent failed to follow the due processes.
16. While We concede that reinstatement is the preferred remedy, but it
cannot be awarded where the reason for dismissal has been confirmed as
being valid. If this were to be done, it would create an unreasonable
result. We say this because, in effect by confirming the reason for
dismissal, the learned Arbitrator expresses his/her approval towards the
reasons given by an employer for dismissing an employee. It therefore,
follows that with such approval, reinstatement cannot, and is not an
option.
17. In Our view, it was thus not necessary for the employer to attempt to
negate the reinstatement of the Applicant in this instance, for even if it
had, it would only have served an academic purpose. We say this
because it could neither influence the learned Arbitrator to either award
reinstatement, or to refrain from doing so. We therefore find that the
learned Arbitrator was rather reasonable in Her approach. This ground
therefore falls.
18. The third ground of review was that the learned Arbitrators decision
that Applicant was not entitled to severance pay and leave pay was
arbitrary. It argued that this is so in that the learned Arbitrator merely
concluded that Applicant was not entitled to severance pay, without
justifying Her decision. It was said that this conduct is in law said to be
arbitrary. The Court was referred to paragraph 14 of the award.
19. It was added that section 79 of the Labour Code Order (supra),
regulates severance payment. It states the circumstances under which
severance payment may or may not be awarded. It was said that
primarily, it cannot be awarded where an employee has been fairly
dismissed for misconduct. It was submitted that in casu, the learned
Arbitrator found that Applicant had unfairly been dismissed and that this
did not disentitle him to severance pay, but the contrary.
20. We have similarly gone through the arbitration award. We have noted
that at paragraph 14, the learned Arbitrator makes a finding that
Applicant is not entitled to both severance payment and annual leave.
AWARD
Our award is therefore as follows:
a) The award of the DDPR is reviewed and set aside only in respect of the
compensation amount.
b) The matter is remitted to the DDPR to be heard and determined on this
aspect, before a different arbitrator.
c) The award is to be complied with within 30 days of issuance herewith.
d) No order as to costs is made.
THUS DONE AND DATED AT MASERU ON THIS 10th DAY OF AUGUST
2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MATELA
MRS. RAMASHAMOLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. NONO
ADV. THABANE
LC/REV/10/2013
A0927/2011(b)
APPLICANT
AND
TSEKO KOBILE
DDPR
ARBITRATOR
(N. MOSAE)
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
JUDGMENT
Application for review of the arbitration award. Three grounds of review
having been raised failure to consider relevant issues, unreasonableness
and biasness. Applicant only succeeding in respect of the first review ground.
Court finding the said ground sufficient to warrant the granting of the review.
The application being granted and the award being reviewed and set aside.
The matter being remitted to the DDPR for a rehearing in the condonation
application before a different Arbitrator, with terms. No order as to costs being
made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A0927/2011(b). The Applicant had employed 1st Respondent until he
was terminated from employment. Unhappy with the termination, 1st
Respondent had then referred a claim for unfair dismissal with the
Directorate of Dispute Prevention and Resolution (DDPR).
2. The matter was heard in default of Applicant, allegedly on the ground
that he had come late for the proceedings, and after the learned
Arbitrator had decided to proceed in its default. An award was later
issued in favour of the 1st Respondent.
Applicant then filed an
application for rescission against the default award. On the date of
hearing, Applicant was advised by the learned Arbitrator that the said
application had been filed out of time, and that a condonation application
had to be made.
Although parties were in agreement that the
condonation be made from the bar, the learned Arbitrator insisted on a
formal application. The matter was therefore postponed without mention.
3. Later on, some months later, Applicant filed its application for
condonation. The condonation was heard and dismissed, giving rise to
the current application. Applicant is in these proceedings asking this
Court to find that the learned Arbitrator failed to consider relevant issues,
that he acted unreasonable and that he was biased. On these bases,
Applicant is asking that the award be reviewed, corrected and/or set
aside. Both parties were heard and Our judgment follows.
SUBMISSIONS AND ANALYSIS
4. Applicants first review ground was that the learned Arbitrator erred in
that he failed to take into account relevant considerations and that this
led to him making a wrong conclusion. It was argued that the learned
Arbitrator rightly noted in his award the factors to consider in
determining an application for condonation. It was submitted that at
paragraph 10 of the arbitration award, the learned Arbitrator noted six
factors to be considered namely, degree of lateness, good cause shown for
the delay, prospects of success, importance of the case, convenience of
the court and avoidance of unnecessary delay in the administration of
justice.
5. It was argued that having noted these factors, the learned Arbitrator went
against his own caution by only considering the fact that the condonation
application had been filed late, thus ignoring the other factors earlier
noted. It was added that in so doing, the learned Arbitrator failed to
make the relevant considerations for the purpose of an issue for
determination before him.
6. The Court was referred to the case of Mahoko Setipe v Nien Hsing
International (Pty) Ltd LC/REV/62/2011, where the principle of irrelevant
considerations was defined and explained. It was submitted that at page
5 of the judgment, the Court stated that an irrelevant consideration
occurs where a decision maker ignores what should be considered and
considers issues extraneous to the subject matter for determination. It
was further argued that discernible from this definition is the position
that not making relevant considerations constitutes a reviewable
irregularity. It added that had the learned Arbitrator considered the
relevant factors, he would have made a different conclusion.
7. In answer, 1st Respondent submitted that the learned Arbitrator made the
relevant considerations. It was argued that while not all factors were
considered by the learned Arbitrator, as Applicant has rightly put, the one
factor considered was sufficient to dispose of the matter, due to its
strength. It was argued that it is not uncommon in law for one factor to
be the decisive element in exclusion of others, and that this is what
transpired in casu.
8. We have perused the arbitration award and wish to confirm that at
paragraph 10, the learned Arbitrator notes the factors to consider in
determining an application for condonation. At this paragraph, the
following is recorded,
Factors to be considered in determining an application for condonation
were laid down by Molahlehi J in the case of National Union of Metal
Workers of South Africa & Others vs Criburd (Pty) Ltd (2008) 29 ILJ 694 as
follows; degree of lateness, explanation of lateness/good cause for the
delay prospects of success in the main case, importance of the case, the
convenience of the court and avoidance of unnecessary delay in the
administration of justice.
9. It is undoubted that all the factors were not considered by the learned
Arbitrator as shown by the submissions of both parties. We have also
considered the award and have also confirmed the position to be true.
We therefore agree with Applicant that in not considering the noted
factors the learned Arbitrator went against His own caution. We also
agree with Applicant that these factors, which the learned Arbitrator
failed to consider, were relevant for purposes of determining whether or
not to grant the condonation application.
This is clear from the
referenced authorities above.
10. We wish to note that We acknowledge the explanation of irrelevant
considerations from the authority of Mahoko Setipe v Nien Hsing
International (Pty) Ltd (supra), and further accept the proposition by
Applicant that ignorance of relevant considerations is a reviewable
irregularity (see Johannesburg Stock Exchange & Another v Witwatersrand
Nigel Ltd and Another, 1998 (3) SA 132 (A) at 152 A- E).
11. We wish to further note that We also agree with the 1st Respondent
that in certain cases one factor may be decisive over others in
determining an issue before court.
However, that should not be
misconstrued to mean that other factors do not need to be considered.
All factors must be considered and an explanation must be given why one
particular factor carries more weight than others. This is the only way
that it can be determined if the decision maker considered them. We
therefore find in favour of Applicant on this point and further note that
Our finding on this ground alone is sufficient to lead to the granting of
this review. However, We will proceed to consider other grounds raised
on behalf of Applicant.
12. The second ground of review was that the learned Arbitrators decision
to dismiss the condonation application without considering its merit but
on the basis that it was late, also taking into account that the said
condonation application was unopposed, is unreasonable. It was argued
that the unreasonableness occurred as a result of strict application of the
rules regarding the time for filing an application for condonation. It was
argued that in dismissing the condonation application on these grounds,
the learned Arbitrator ignored the prejudice that would occasion on the
Applicant as a result of His decision.
13. It was argued that the attitude and practice of strictly applying the
rules of the court was discouraged by the Court of Appeal of Lesotho in
the case of National University of Lesotho & Another v Motlatsi Thabane C
of A (CIV) 3/2008. It was submitted that in this case, the Court stated
We do concede that Rules of the Court are not mere ornaments as 1st
Respondent has put. However, they should not be applied in isolation,
but in consideration of other factors.
20. In the case of National University of Lesotho & another .v. Motlatsi
Thabane (supra), that has been referenced by applicant, the Court at
paragraph 4 makes the following remark,
Thus what amounts to purely technical objections should not be permitted,
in the absence of prejudice, to impede the hearing of the appeal on merits.
This in Our view means that while courts are designed to ensure that
their rules are observed, but that should not be at the prejudice of
parties.
21. Supportive of Our view is the approach taken by the Court of Appeal of
Lesotho in Thabo Makenete v Major General Justin Lekhanya and others C
of A (supra). In this case, the Court having expressed its displeasure at
non-observance of the rules, went ahead to allow a party that had
breached the rules to file an application for condonation. This is
captured as thus,
It has become clear during the present session that many practitioners are
displaying a lamentably lax attitude to the rules of court bordering on the
contemptuous. The attitude evinced seems to be that the rules are
unimportant, can be disregarded at will and that non-compliance will
simply be overlooked or condonation granted as a matter of course and
right. It is time that practitioners minds were disabused of this much
mistaken impression and the misconceived idea that their disregard of the
rules will be overlooked because of the prejudice their clients might suffer.
22. Having expressed displeasure as demonstrated above, the Court then
went on to say that,
We do not however, wish to close the door finally on the appellant and
will accordingly make an order which will enable the applicant, if so
advised, to bring a proper application for condonation to this court at its
next session which, if granted, would enabled the matter to be heard at
such next session.
In essence, if properly raised, We could have been inclined to find that the
learned Arbitrator had erred by strictly adhering to a fixed principle,
being the rules on the filing of applications, without considering the
extend of prejudice that would occasion from His decision.
23. The third ground of review was that the learned Arbitrator was biased
in the matter and that he should have recused himself from the
proceedings. In support it was argued that bias was first manifested
when the learned Arbitrator disallowed Applicants representative to take
part in the proceedings for being late by just four minutes. Secondly,
that the learned Arbitrator showed biasness by requiring Applicant to file
a formal application for condonation for late filing of the rescission, when
no objection was raised to the application being made from the bar.
24. Lastly, that it was submitted that biasness was further demonstrated
when the learned Arbitrator dismissed the Applicants application for
condonation without considering its merit simply because it had been
filed late. It was argued that this incident, together with other two above,
demonstrate that the learned Arbitrator had an interest in the matter,
which was to maintain and uphold his initial biased conclusion, to
exclude Applicants representation in the proceedings.
25. 1st Respondent answered that there is no biasness, at least from the
narrated chronology of events. It was submitted that there was rational
justification why all that was done, was in fact done. It was argued that,
in fact this ground and the other two are appeal disguised as review as
they all challenge the conclusion of the learned Arbitrator. The Court was
referred to the case of Action Statistical Investment (Pty) Ltd t/a Pick n Pay
v Lesia Monanabela & another LC/REV/33/2011, where the Court made
a distinction between an appeal and a review.
26. Where an allegation of biasness is made against a presiding officer, the
test to be applied is an objective one. The elements of the test were laid
out in the case of S v Roberts 199 (4) SA 915 (SCA) at 924-E 925D as
thus:
...(2) The suspicion [of bias] merit be that of a reasonable person in the
position of the accused or litigant.
(3) The suspicion must be based on reasonable grounds.
(4) The suspicion is one which the reasonable person referred to would, not
might, have.
27. The reasoning proposed by Applicant in its claim for biasness, on the
part of the learned Arbitrator, falls short of the requirements. We say this
because nothing has been shown by Applicant that the learned Arbitrator
had an interest in one of the litigants before Him, or in the outcome of the
matter. By this We mean that Applicant has failed to show the benefit
that would come to the learned Arbitrator in maintaining His decision, to
exclude Applicants representatives from the proceedings and in requiring
Applicant to make a formal application for condonation, as well as in not
considering all elements in determining an application for condonation.
It therefore cannot be said that the Applicants suspicion of bias is a
reasonable one.
28. We are supported in Our conclusion by the authority of Bernet v ABSA
Ltd (2010) ZACC 28, where the Court stated hat apprehension of bias by a
reasonable man may arise,
either from the conviction of interest that the judicial officer has in one of
the litigants before court or from the interest that the judicial officer has in
the outcome of the case.
We are therefore of the view that the claim for bias is bare and
unconvincing. It is trite law that bare allegations cannot be relied to
make a decisive conclusion in favour of the party making such allegations
(see Mokone v Attorney General & others CIV/APN/232/2008).
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. NDEBELE
MR. MAIEANE
LC/REV/21/2015
A0914/2014
APPLICANT
AND
TFS WHOLESALE (PTY) LTD
DDPR
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Application for review of arbitration award. Only one ground of review having
been raised failure to apply mind. Matter being heard in default of 1st
Respondent. Court finding in favour Applicant and granting the review. Matter
being remitted to the DDPR for a hearing de novo before a different Arbitrator.
Both sections 227(8) and 228A of the Labour Court being interpreted. Court
restating the position that failure to apply a mind to relevant facts constitutes
a reviewable irregularity. No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
A0915/14. Only one ground of review has been raised that the learned
Arbitrator failed to apply Her mind to the law and facts and that led Her
to making the wrong conclusion. The matter was heard in default of 1st
Respondent.
2. The brief background is that Applicant was an employee of 1st
Respondent until she was dismissed. Unhappy with her dismissal, she
referred a claim for unfair dismissal with the Directorate of Dispute
Prevention and Resolution (DDPR). The matter was duly set down for
conciliation and arbitration. On the first date of the hearing both
Applicant and 1st Respondent, were not in attendance but were
represented by their representatives.
3. At the commencement of the proceedings, 1st Respondent representative
applied for the dismissal of the referral on account of non-attendance of
the Applicant in person. It had been argued on behalf of 1st Respondent
that section 228A of the Labour Code (Amendment) Act 3 of 2000, required
the presence of a dominis litis person in the strict sense, and not a
representative. It was added that Applicant having failed to attend, the
referral stood to be dismissed. The application was granted and the
referral was dismissed.
(a) a co-employee;
(b) a labour officer, in the circumstances contemplated in section 16(b);
(c) a member, an officer of a registered trade union or employers
organization; or
(d) if the party to the dispute is a juristic person, by a director, officer or
employee....
12. Clearly, the section elevates the status of an Applicant partys
representative to that of an Applicant. This is particularly so where the
presence of an Applicant party is not really required, as was the case in
casu, at least for purposes of the conciliation of the matter.
Consequently, the position suggested to the learned Arbitrator by the 1st
Respondent is inaccurate, and cannot stand.
13. We wish to add that if the 1st Respondent contention were to be
upheld, it would set a very ruinous precedent in law. It would mean that
even in motion proceedings, where a party has already given evidence in
an affidavit, they would have to be physically present even though their
presence would not be necessary for that purpose.
14. We wish to further comment on the provisions of section 227(8) of the
Labour Code (Amendment) Act (supra). That section is couched as follows,
(8) If a party to a dispute contemplated in subsection (4) fails to attend the
conciliation or hearing of an arbitration, the arbitrator may
(a) postpone the hearing;
(b) dismiss the referral; or
(c) grant an award by default.
15. While We concede that the provisions of section 227(8) of the Labour
Code (Amendment) Act (supra), vest the learned Arbitrator with the
discretion to either dismiss, postpone or grant an award by default, such
discretion must be exercised judiciously. This is signified by the use of
the word may in the section. Judicious exercise of discretion requires
that the decision maker must consider all circumstances present and
relevant to the matter, before making a decision. As We have shown
earlier that not all facts and submissions were considered, it cannot be
said that the discretion to dismiss was judiciously exercised.
AWARD
We therefore make the following award,
a) That the review application is granted.
b) The matter is remitted to the DDPR to be conciliated upon and heard in
arbitration should conciliation fail.
c) That this order be complied with within 30 days of issuance.
d) No order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 12th DAY OF OCTOBER
2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. MOTHEPU
MISS LEBITSA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
MR. LETSIE
NO ATTENDANCE
LC/REV139/2014
J0064/2013
APPLICANT
AND
MATSIETSI NTSIKI
LEHLOHONOLO LETELA
MOSIUOA LESESA
DDPR
1st RESPONDENT
2nd RESPONDENT
3rd RESPONDENT
4th RESPONDENT
JUDGMENT
Application for review of arbitration award. Three grounds of review having
been raised. Court finding one ground sufficient to warrant the granting of the
review. Court not finding it not necessary to consider other grounds. Court
granting the review and correcting the arbitration award with terms. No order
as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for the review of the arbitration award in referral
J0064/2013. Three grounds of review have been raised on behalf of the
Applicant.
The matter was not opposed as Respondents formally
withdrew same before Court.
2. The brief background of the matter is that 1st to 3rd Respondents were
employees of Applicant until they were dismissed. Unhappy with the
dismissals, they referred claims for unfair dismissal with the Directorate
of Dispute Prevention and Resolution (DDPR). The matter was heard in
default of the Applicant before the learned Arbitrator Masheane.
Thereafter, Applicant lodged an application for rescission.
The
application was heard by Arbitrator Mofoka, who dismissed same.
3. Unhappy with the latter award, Applicant initiated review proceedings,
wherein it sought the review and correction of the said award. As earlier
indicated, three grounds were raised and argued unopposed. Having
heard the submissions and arguments of Applicant, Our judgment
follows.
SUBMISSIONS AND ANALYSIS
4. The first ground of review is that the learned Arbitrator erred by hearing
an application for the rescission of an award that was not heard by Her in
default. It was submitted that the initial award was the result of a
hearing before Arbitrator Masheane, while the award arising out of the
rescission application was before Arbitrator Mofoka. The Court was
referred to annexures A and B.
5. It was submitted that this is contrary to the Labour Code (Directorate of
Dispute Prevention and Resolution) Regulations of 2001. Specifically, the
Court was referred to Regulation 29 (3) and (4) of same. It was argued
that in terms of these Regulations, an award shall only be rescinded by
an arbitrator who granted or issued it. Further that an exception lies
where the Director has shown good cause for the deviation.
6. It was submitted that in casu, the Director has not shown any cause why
another arbitrator was appointed to hear the rescission of a matter heard
by another arbitrator. It was added that what is affront is the fact both
arbitrators in question remain in employment of the DDPR. The Court
was invited to take judicial notice of that.
7. It was submitted that on this ground alone the arbitration award stood to
be reviewed and corrected, by granting the rescission application. In
support of the prayer, it was submitted that in the rescission application
proceedings, Applicant had given evidence that it did not receive any
process in these proceedings until the arbitration award.
It was
submitted that this evidence was not challenged.
8. It was added that the above notwithstanding, the learned Arbitrator, on
own motion and outside the proceedings, made own investigations to
negate the evidence of applicant. It was submitted that on the basis of
Her findings, the learned Arbitrator found the explanation given on behalf
of Applicant not reasonable. The Court was referred to pages 5 and 6 of
the record of proceedings before the DDPR.
9. It was further submitted that the learned Arbitrator relied on Her own
findings, which findings were not put to Applicant to react to, before a
decision was made. It was argued that in so doing the learned Arbitrator
did not only act unfairly towards Applicant, but also descended into an
arena of dispute and relied on facts not subjected to challenge to dismiss
the Applicants case. The Court was referred to the arbitration award at
paragraph 5.
10. We have gone through the awards, annexures A and B, and do confirm
that one is the default award while the other is a rescission award. We
also do confirm that the initial default award was issued by Arbitrator
Masheane, while the latter was issued by Arbitrator Mofoka.
11. We also confirm that in terms of the Labour Code (DDPR) Regulations
(supra), an award can only be rescinded by an arbitrator who made it,
unless there are special circumstances that warrant a deviation. We wish
to add that the circumstances must be legal and not social or otherwise.
The provisions of the DDPR Regulations in issue are couched as follows,
29
(1)
(2)
(3)
Subject to sub-regulation (4) the arbitrator who issued the
arbitration award or ruling shall hear the application for variation
or rescission.
(4) The Director may, on given cause shown, appoint another
arbitrator to hear the application.
12. Evidently, sub-regulation (3) has been breached and this is a
procedural irregularity. The breach is also not sanctioned by subregulation (4), as there is neither any document that contains the reasons
against which the decision to have a different arbitrator hear the
rescission, nor any claim or statement in the arbitration award to that
effect. Consequently, this is one irregularity that warrants a review.
13. Regarding the relief sought, which is to grant the rescission
application, We find for Applicant. We have been shown evidence on the
record of proceedings before the DDPR that Respondents did not contest
the evidence of Applicant. In fact they stated their desire to have the
matter reopened. This is clear from pages 5 6, as referenced by
Applicant.
14. We wish to comment that We agree with Applicant that the learned
Arbitrator Mofoka descended into the arena of dispute by making Her
own findings, which were outside the proceedings and not put to
Applicant, to reach Her conclusion. As a result, had She not unilaterally
engaged in this exercise, She could have been inclined to grant the
rescission. We say this because the explanation given by Applicant was
not only accepted by Respondents, but they indicated their desire to have
the matter reopened.
15. On the strength of this ground alone, We see no need to even proceed
to consider other grounds of review. It is Our view that it would only be
an academic exercise, for which this court was not established. We
therefore proceed to make Our award.
AWARD
We therefore make an award as follows,
e) That the review is granted.
f) The award is corrected as follow,
(i) That the rescission application is granted; and
(ii) That the matter be heard in the merits.
g) That this order be complied with within 30 days of issuance herewith.
h) No order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 9th DAY OF OCTOBER
2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MR. KAO
MRS. RAMASHAMOLE
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. NTAOTE
ADV. NTEMA
LC/88/2014
APPLICANT
AND
LESOTHO ELECTRICITY
COMPANY (PTY) LTD
RESPONDENT
JUDGMENT
Application for an interdict. Respondent raising three point of law in answer
on jurisdiction, failure to establish a right to an interdict and material nondisclosure. Court finding that it has jurisdiction over this application. Court
however finding that Applicant has failed to establish a right to an interdict
and that he also failed to make a material disclosure of facts. Court dismissing
application and no order as to costs being made.
BACKGROUND OF THE DISPUTE
1. This is an application for an interdict in the following terms:
1. Dispersing with the ordinary rules and modes of service pertaining to
the present application.
2. Restraining the respondent from removing the applicant out of the
respondents house the applicant occupies in Qachas Nek pending
finalisation of the DDPR proceedings in A0669/2014.
3. Directing that prayers 1 and 2 above should operate with immediate
effect.
4. Granting further and/or alternative relief to the applicant as this
Honourable Court may deem fit.
2. Prayers 1 and 2 were granted and a rule nisi was issued returnable on
the day of hearing. In its answer to the Applicants claim, Respondent
had raised three points of law, on jurisdiction, failure to establish a right
to an interdict and material non-disclosure. These were replied to by
Applicant issuably.
Parties were heard on these points and Our
judgement follows.
SUBMISSIONS AND ANALYSIS
Jurisdiction
3. Respondent argued that Applicants case centres around removal from
occupation, wherein Applicant claims to have the right to occupy. It was
argued that the remedy sought lies within the jurisdiction of the
has been termed forum shopping. CF the paper printing Wood and Allied
Workers case, supra at 640 G-H.
8. It was further submitted that in so far as interdicts are concerned, the
jurisdiction of the Labour Court is limited only in respect of matters
which,
a) in the first place do not fall within the jurisdiction of the DDPR.
b) they have to do with an issue arising predominantly from the provisions
of the Labour Code.
9. It was concluded that the relationship between Applicant and Respondent
was that of occupier and owner which is the tenant and the landlord. It
was argued that as a result, the relationship has nothing to do with the
provision of the Labour Code. It was prayed that the claim be dismissed
on the ground above.
10. In answer, Respondent submitted that the dispute has a remedy
under section 228(1) of the Labour Code (Amendment) Act 3 of 2000. It
was submitted that in terms of that section, Any party to a dispute that
has been referred in terms of section 227, may apply to the Labour Court
for urgent relief, including interim relief pending the resolution of a dispute
by arbitration.
It was argued that as a result, there is no usurping of powers.
11. It was further argued that the right to occupy arises from the parties
employment contractual relationship and the policies of the employer. It
was submitted that this being the case, this Court has jurisdiction to
grant an interdict in terms of section 228(1) as reference above.
12. It is not in dispute that the interdict sought is pending finalisation of a
matter before the DDPR. That being the case, it falls within the
jurisdiction of this Court, at least in terms of section 228(1) of the Labour
Code (Amendment) Act (supra). We are therefore in agreement with
Applicant that the remedy sought lies within the jurisdiction of this Court
and no other.
13. The above view standing, We wish to comment on the submissions of
the Respondent to set the record straight.
We confirm that the
Subordinate Court have jurisdiction to grant interdicts in terms of section
18(1) of the Subordinate Courts Order (supra). However, such jurisdiction
is subject to the provisions of section 25 of the Labour code Order (supra),
as amended by section 9 of the Labour Code (Amendment) Act (supra).
14. In terms of that section,
(1) The jurisdiction of the Labour Court is exclusive and no court shall
exercise its jurisdiction in respect of any matter provided under the Code
(a) Subject to the constitution and section 38A; and
(b) Notwithstanding section 6 of the High Court Act, 1978 (Act No. 13 of
1973).
Material non-disclosure
26. Respondent argued that Applicant has failed to disclose material facts
before this Court that
a) he applied for the position of superintendent;
b) he was not successful in the said post;
c) he had been put on that post per the letter attached to the answering
affidavit.
It was argued that had these facts been disclosed, he would not have
been granted the interdict.
27. The Court was referred to the case of Schlesinger v Schlesinger 1979 (4)
SA 342, where the Court had this to say
(1) In ex parte applications, all material facts must be disclosed which
might influence a court in coming to a decision;
(2) the non-disclosure or suppression of facts need not be wilful or mala
fide to incur the penalty of rescission; and
(3) the court, appraised of the true facts, has a discretion to set aside the
former order or to preserve it.
It was added that this extract was quoted with approval in Mamahao
Nkhasi v Lesotho Electricity Corporation and 4 Others CIV/APN/36/08.
28. In answer, Applicant submitted that he acted in the position of
superintendent for four years. He added that even if he had not disclosed
that he had applied and was not successful, Respondent has not shown
the effect of that on the order granted. It was submitted that there is no
failure to disclose a material fact. The Court was referred to paragraph 5
of the Founding Affidavit.
29. We have gone through the Founding Affidavit of Applicant, and not
just on paragraph 5. From its perusal, We have noted that position in
respect of which the interdict is sought is that of superintendent. The
right of Applicant to occupy the house in issue depends on him being in
the position. As a result, it was incumbent upon him to disclose any
evidence that is material or which had the likelihood of influencing the
Court in its decision.
30. In Our view, the non-disclosed facts are material. We say this because
these facts go to the heart of the Applicants claim for a right to be
granted an interdict. We say this because if Applicant had applied for the
position in issue, it meant that he was aware that it could be given to
someone else other than him, subject to the outcome of the recruitment
process. At that stage, Applicant had then ceased to have a right to the
position in issue. Therefore if this fact had been disclosed, We would not
have granted the interdict. In Our view the rule in Schlesinger v
Schelsinger applies in casu.
AWARD
We therefore make an award as follows:
a) Application is dismissed.
b) The rule granted is discharged.
c) No order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF FEBRUARY,
2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MRS. RAMASHAMOLE
MISS LEBITSA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. NTAOTE
ADV. MOLATI
LC/56/2013
APPLICANT
AND
MINOPEX LESOTHO (PTY) LTD
RESPONDENT
JUDGMENT
Claims for underpayments and unfair dismissal. Respondent raising a point of
law that that this Court has no jurisdiction to adjudicate both claims as they
fall within the jurisdiction of the DDPR. Court finding that the Labour Code
(Amendment) Act 3 of 2000 does not limit the basis of underpayments for
traibility before the DDPR. Court further finding that Applicants dismissal is
not based on grounds stated under section 226(1)(c) of the Labour Code
(Amendment) Act (supra). Court declining jurisdiction. Court further directing
parties to arbitrate the dispute before the DDPR within 30 days of issuance of
this order. No order as to costs being made.
BACKGROUND OF THE DISPUTE
1. These are claims for underpayments and unfair dismissal. Facts giving
rise to these claims are that Applicant was employed by Respondent until
his dismissal on or around the 18th March 2013. Following the said
dismissal, Applicant referred a dispute with the Directorate of Dispute
Prevention and Resolution (DDPR), wherein he claimed both
underpayments and an unfair dismissal. The matter was then duly
conciliated, during which process the learned Arbitrator made a
determination that since both claims were based on discrimination, and
then he had no jurisdiction to entertain them. A report of non-resolution
was thereafter issued referring the matter before this Court for
adjudication.
2. Following the initiation of underpayments claim, Applicant lodged the
unfair dismissal claim against Respondent.
He then sought its
consolidation with the underpayments claim. The consolidation was
unopposed and having found merit in the said application, We granted it
and the claims were duly consolidated.
3. In its answer to Applicant claims, Respondent raised a point in limine in
which it challenged this Courts jurisdiction to entertain the two claims.
Respondent argued that both the unfair dismissal claims and
employer.
8. The reasons for the dismissal of Applicant are clearly for other reasons
other than those stated above. Further, section 226 (2) (c) of the Labour
Code (Amendment) Act (supra), does not limit or restrict the basis of
underpayments to other reasons other than discrimination for them to be
triable before the DDPR. In fact, the said section permits the referral of
an underpayment claim for any grounds recognised under the Labour
Code Order of 1994 as amended. Therefore, We are of the view that We
do not have jurisdiction over both claims, as they fall within the DDPR
jurisdiction.
COSTS
9. Respondent had asked for dismissal of the Applicants claims with costs.
We have stated before that costs are awarded in extreme circumstances of
either frivolity or vexations conduct (see Thabiso Moletsane v Ministry of
Public works and Transport LC/31/2014). Respondent does not allege
any of the two or both. As a result, We do not find justification in its
prayer for costs and We accordingly refuse same.
AWARD
For the above reasons, We make the following award,
a) That these claims are dismissed for want of jurisdiction.
b) The two claims fall within the DDPR jurisdiction.
c) Applicant may, if he so wishes, proceed to arbitrate these two claims
within 30 days of issuance herewith failing which he shall be barred.
d) No order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF FEBRUARY,
2015.
T C RAMOSEME
DEPUTY PRESIDENT (a.i.)
LABOUR COURT OF LESOTHO
MRS. RAMASHAMOLE
MS. LEBITSA
I CONCUR
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
ADV. RASEKOAI
MR. LETSIKA