CIV/A/8/83

IN THE HIGH COURT OF LESOTHO

In the Appeal of :

BARCLAYS BANK INTERNATIONAL, LTD .... Appellant

and

LESOTHO UNION OF BANK EMPLOYEES .......Respondent

JUDGMENT

Delivered by the Hon. Mr. Justice B.K. Molai on the
17th day of August, 1984.

This appeal is, in terms of the provisions of Section 68
of the Trade Unions and Trade Disputes Law No. 11 of 1964. against
the finding
of the Unfair Labour Practices Tribunal, that the
dismissal of one B.T. Rangoanana, a member of the Respondent union,
by the Appellant
bank, was an act of unfair labour practice. The
appeal is also against the subsequent order that the Appellant Bank
must reinstate
Rangoanana to the position he held with the Appellant
bank prior to his dismissal and pay him compensation for the loss of
earnings.

The grounds on which the appeal is based are that there
was no evidence before the Tribunal to support a finding of unfair
labour
practice and the subsequent order was, therefore, unjustified.

The following facts were common cause : In 1968,
Rangoanana joined the services of the Appellant Bank. The terms of
contract were
spelt out in a written document styled the "Articles
of Agreement" which was signed by the contracting parties. When
in
1971 the Respondent union was founded,Rangoanana became its
member.

On 7th July, 1982, the Appellant bank dismissed
Rangoanana from its employment. Consequently the President of the
Respondent union
wrote to the Registrar

2/ of the

-2-

of the Unfair Labour Practices Tribunal, a letter dated
19th August, 1982 in which he lodged a complaint against the
Appellant Bank
in terms of Section 61 of the Trade Unions and trade
Disputes Law, supra. He charged that in terminating the services of
Rangoanana,
as it did, the Appellant bank was guilty of unfair labour
practice wherefore he called upon the Registrar to summon the Unfair
Labour
Practices Tribunal to hear the case.

In support of the charge against the Appellant bank, the
Respondent Union filed a founding affidavit deposed to by Rangoanana.
The
Appellant bank intimated its intention to oppose this matter and
duly filed its answering affidavit which was deposed to by one Peter
Greenrod. its Lesotho Manager. A replying affidavit, again deposed to
by Rangoanana, was filed.

When the matter eventually came for hearing before the
Unfair Labour Practices Tribunal either of the litigants was afforded
the opportunity
to lead viva voce evidence.

The case made out by the Respondent Union in both its
affidavits and verbal evidence was, very briefly, that following a
salary dispute
between the Respondent union, and the two Commercial
Banks in the country namely, the Standard Bank and the Appellant
Bank, the former
took an industrial action. It called general
strikes for its members in February and March, 1982. In April, 1982,
it again called
a ban on overtime work. Rangoanana and some of his
fellow employees participated in all the strikes and the bank on
overtime work.

On 7th July, 1982, Peter Greenrod called among others,
Rangoanana and in the presence of one Kimane, the Assistant Manager
asked him
whether he was prepared to do overtime work as required by
the Appellant Bank or continue to observe the Respondent Union's ban
on
overtime work. Rangoanana's reply was in effect that he was
prepared to continue to observe the ban on, rather than do,overtime
work.
He was then served with the letter Annexure "A" -

3/ - dismissing ....

-3-

dismissing him in terms of S. 15(3)(b) of the Employment
Act 1967. An application form for re-employment was attached to
annexure
"A". Rangoanana took the letter and left. He
never completed the attached application form for re-employment.

On 10th July, 1982, Rangoanana reported for work on the
advice of the Respondent union. On his arrival at the bank, he was
served
with another letter - annexure "B" -according to
which he was being summarily dismissed in terms of S.15(3)(a) of the
Employment
Act, supra, for misconduct in manacing and threatening
Greenrod with a screwdriver on 7th July, 1982. He returned home.

Later on, he received from Greenrod two letters
respectively dated 12th July, 1982 and 18th August, 1982. The first
letter - Annexure
"C" - communicated to Rangoanana that his
summary dismissal of 10th July, 1982 was being commuted to one of
suspension
from all bank duties for one month. The second letter
advised him that after full consideration, the appellant bank had
been unable
to find any grounds on which he could be reinstated and
his employment was, therefore, terminated in accordance with the
terms of
his contract of service and the Employment Act 1967.

It was contended that the termination of his services
was nothing but victimization of Rangoanana for his being an active
member of
the Respondent union and, therefore, an act of unfair
labour practice.

The Appellant bank refuted this contention and pointed
out that Rangoanana was dismissed solely on the grounds disclosed in
his letter
of dismissal dated 10th August, 1982. That letter reads,
in part :

"Dear Sir,

Termination of contract Service:

On the
7th July, you threatened violence with an offensive weapon, a large
screwdriver, to a colleague, the undersigned.

4/ You were .....

-4-

You were subsequently suspended from your duties for one
month, while the matter was under consideration.

After full consideration, we can see no grounds for
re-instatement, and your services are herewith terminated, in terms
of your contract
of service and of the Employment Act, 1967.

One month's salary will be paid to you in lieu of
notice, and any other entitlements will be calculated and credited,
your dismissal
taking effect from to day.

Any loan accounts you have with the Bank now become
repayable. Pending repayment, they will be moved from the staff
account section.

Yours faithfully,

Peter Greenrod Lesotho Manager.

c.c. Labour Commissioner."

The reading of the second paragraph of the above quoted
letter makes it clear that the Appellant bank did not dispute
annexure "C"
- the letter of 12th July, 1982 in which the
summary dismissal of Rangoanana was commuted to one of suspension for
one month - a
fortiori - annexure "B" - the letter dated
10th July, 1982 by which he was dismissed. As I see it, the decision
in this
matter revolves on whether or not the dismissal was in fact
on the grounds disclosed in the letter of 18th August, 1982.

The Appellant bank conceded that following a salary
dispute between itself and the Union, the latter called the strikes
and the ban
on overtime work in which Rangoanana participated.
However, according to the Appellant bank, the ban on overtime work
was a breach
of the Essential Services Arbitration Act No. 54 of 1975
and, therefore,illegal. In this regard,reference was made to Section
2
and 6(1) of the Essential Services Arbitration Act, supra.

It is to be noted that s.2 of the Essential Services
Arbitration Act, supra, defines, inter alia, "Essential
Services" as
meaning the services rendered by any person in
respect of a trade which is specified or included in the

5/ schedule ....

-5-

schedule to that Act. It is also worth noting that
by-Legal Notice No.21 of 1982 which was published in Gazette No. 11
of 25th March,
1982, the Banking Business Services were inserted in
the schedule to the Act and thereby declared "Essential
Services"
so that when in April, 1982, the Respondent Union
called the ban on overtime work, the Appellant bank, no doubt, fell
within the
ambit of "Essen­tial Services." That being
so, sec. 17(1) of the Essential Services Arbitration Act, 1975
clearly provides:

"no person shall declare, instigate counsel,
procure or abet a lock-out or strike in any essential services,
unless a trade dispute
exists and has been reported to the Labour
Commissioner in accordance with sec. 6(1) and twenty one days or, if
a further period
has been allowed by the Minister under subsection
(5) of that section, twenty one days and such further period have
elapsed since
the date of such report and dis­pute has not been
during that time settled or been referred to the Tribunal by the
Minister under
that section."

It appears from the Labour Commissioner's letter of 6th
May, 1982, that the question of whether or not a trade dispute
existed between
the Banks and the Union, law­fully entitling the
latter to resort to industrial action, as it did in February, March
and April,
1982, was referred to the Labour Commissioner whose reply
was in the negative. That letter was addressed to the Chief Manager
of
the Standard Bank and copied to the Secretary of the Respondent
union. It reads, in part ;

"Dear Sir,

re: Banning of Overtime : Lesotho Union Bank Employees.

We refer to your letters of 5th, 22nd, 28th ultimo and
4th instant on the above subject.

As intimated in our letter to the Union (dated 29th
April, 1982), which was copied to you, in the absence of any private
agreement
between yourselves and your employees doing away with
overtime, the Employment Act empowers you to require your employees
to work
overtime

6/ within the

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within the legally prescribed limits. The relevant
sections of the Act also provide you with remedies which you might
have recourse
to in the event of disobedience of your lawful orders ,
generally.

Regarding the question of whether the action of the
Union constitutes a strike in terms of the provisions of the
Essential Services
Arbitration Act 1975, we consider that their
conduct does not fall within the definition of a "strike"
because :-

1. 
   it has not been demonstrated to
   be "in
   consequence or a trade
   dispute" and

   
   

2. 
   it has not been shown that the
   employees have the
   requisite
   intention(s).

   
   

Lastly, we are of the opinion that there might be a
potential trade dispute within the meaning accorded to the expression
inter alia,
by section 2(1) of the Trade Unions and Trade disputes
Law 1964.

We hope that this addresses itself to all the issues
raised in your letters referred to here-before ....." (my
underlinings)

It is clear from the terms of this letter that the
decision of the Labour Commissioner was that as of 6th May, 1982, no
trade dispute
existed between the banks and the union and the latter
could not, therefore, lawfully have resorted to an industrial action
in April
1982. Such decision was, in terms of the provisions of sec.
6(1) of the Essential Services Arbitration Act, 1975 conclusive. It
is perhaps helpful to quote that section. It reads:

"6(1) If any Trade dispute in an essential service
exists or is apprehended, that dispute if not otherwise determined,
may be
reported in writing to the Labour Commis­sioner by or on
behalf of either party to dispute, and the decision of the Labour
Commissioner
as to whether "or not a dispute is or is not a
trade dispute in an essential service and whether or not a dispute
has been so
reported to him and as to the time at which a dispute has
been so reported shall be conclusive for all purposes."

(my underlinings)

7/ The evidence of

-7-

The evidence of the Appellant bank was that as a result
of the strikes and the ban on overtime work called by the Respondent
union
and in which Rangoanana admittedly-participated, the work of
the bank was suffering. The bank conceded, therefore, that on 7th
July,
1982, Rangoanana was one of the employees who were interviewed
and asked in the presence of Kimane, whether they were prepared to
work overtime or continue to observe the ban on overtime work.
Rangoanana opted for the latter alternative. The decision was then
taken to serve him with the above-mentioned letter of dismissal. The
letter reminded Rangoanana that he had in the past been required
to
do overtime work. Notwithstanding that requirement he was, however,
persisting in the observance of the ban on over­time work.

Consequently he was being summarily dismissed from the bank's
services with immediate effect in accordance with the provisions of
sec, 15(3)(b) of the Employment Act, 1967 which section reads, in
part :

"(3) An employer may dismiss an employee

summarily in the following circumstances
and no other
-

(b) for wilful disobedience to lawful orders
given by
the employer "

It seems to me that after the banking business had, on
25th March, 1982, been declared "essential services", the
Respondent
union could not, in terms of sec. 17(1) of the Essential
Services Arbitration Act, 1975, have lawfully called a strike for its
members
unless a trade dispute existed and had been reported to the
Labour Commissioner in accordance with the provisions of s. 6(1) of
the
Act. The Labour Commissioner's above quoted letter of 6th May,
1982, clearly indicates that in his decision no trade dispute existed
between the Appellant bank and the Respondent union, in April, 1982,
when the Union called the ban on overtime work. The ban, therefore,
constituted an illegal strike of which participation was clearly
prohibited under the provisions of s. 16(1) of the Act. Rangoanana's

8/ continued observance ...

-8-

continued observance of the ban on overtime work or
strike was, in the circumstances illegal or wilful dis­obedience
to lawful
orders requiring him to do overtime work. That granted,
there can be no doubt that the Appellant bank was entitled to
summarily dismiss
him, as it did, on 7th July, 1982, in terms of the
provisions of sec. 15(3)(b) of the Employment Act, supra.

Michael James Cummis, the Maseru Branch Manager of the
Appellant Bank testified that following their dismissal of 7th July,
1982,
Rangoanana and other members of the staff did not (as indicated
earlier) complete the application forms for re-employment which were
attached to their letters of dismissal. They nevertheless,
subsequently reported for work and their dismissals were cancelled.
Rangoanana
was, however, served with another letter of dismissal -
annexure "B". He was being dismissed in terms of the
Employment
Act,1967 sec. 15(3)(a) for his alleged misconduct in
manacing and threatening Greenrod with an offensive weapon, namely a
large screwdriver,
on 7th July, 1982.

It is significant to note that Rangoanana denied the
alleged misconduct. However, the evidence of Cummis seems to find
support in
Greenrod's opposing affidavit which implied that
Rangoanana had been dismissed for the alleged misconduct. Thus, for
example, at
page 4 of the affidavit Greenrod averred, inter alia:

"Any member of staff of the Respondent who assaults
another,reinforcing such assault with a dangerous and offensive
weapon will
be dismissed whether he may be an active member of the
Lesotho Union of Bank Employees or not

The evidence of Cummis and the deposition of Greenrod on
the alleged misconduct were corroborated by the evidence of Kimane
who told
the Tribunal that he was present when Greenrod was writing
Rangoanana's letter of dismissal on 7th July, 1982. While Greenrod
was
writing the letter, Rangoanana did suddenly threaten to attack
him with a screwdriver and ordered that he drop down the

9/letter

-9-

letter. For fear of his safety Greenrod did drop the
letter which Rangoanana picked and carried away. However, Rangoanana
subsequently
telephoned Kimane from another office and asked him to
tell Greenrod to make another letter as he (Rangoanana) had destroyed
the
first one. Kimane complied and Greenrod accordingly wrote another
letter - Annexure "A" which was served on Rangoanana.

According to Cummis, following Rangoanana's alleged
misconduct or threat of violence, Greenrod wrote Exhibit A, the
letter dated 7th
July, 1982, to the Maseru Charge office Police
reporting the incident. The matter was, therefore, in the hands of
the police. In
his evidence Kimane also told the Tribunal that later
on (i.e. after the 7th July, 1982) Greenrod made a statement to the
police
in connection with the incident.

The Tribunal acttacked Appellant's evidence that
Rangoanana had committed the alleged misconduct apparently on the
grounds, inter
alia, that Greenrod himself was not available to give
evidence and as Kimane had testified that Greenrod had reported the
alleged
attacked on him to the police only after the 7th July, 1982,
the letter -Exh A - had been antedated to coincide with the date of
the alleged misconduct. The Tribunal concluded, therefore, that the
Appellant's evidence on the question of Rangoanana's misconduct
was
all a concocted story aimed at finding an excuse for his dismissal.
With respect, I am unable to agree. Firstly,the fact that
Greenrod
was not available to give verbal evidence before the Tribunal should
not, in itself, be the reason for disregarding the
evidence made in
his sworn affidavit. Secondly, from the record of proceedings,Kimane
did not use the word "report". What
he said was :

"I know that Greenrod made a statement to the
police but it was not on the same day, I cannot recall whether it
was on the following
day. I do not remember when it was made."

(my underlining)

10/ It would

-10-

It would appear that whilst Cummis was talking about the
report made per the letter - Exh.'A' ,Kimane was referring to a
statement
which Greenrod had apparently made to the police on a later
date (i.e. after 7th July, 1982), I see no contradiction in this. If
Greenrod had written a report to the police on 7th July, 1982, there
was nothing preventing him from making a statement to the police
on a
later date. It would not necessarily mean that the statement was the
written report antedated to coincide with the date of Rangoanana's
alleged mis­conduct ,

It seems to me that on the balance of probabilities
there was sufficient evidence in support of Appellant's allegation
that Rangoanana
had threatened Greenrod with violence on 7th July,
1982 and the Tribunal misdirected itself in finding that he had not.
I can find
no evidence to support the contention that Rangoanana was
dismissed as an act of victimization and the contention remains a
mere
speculation which should not in my opinion, have been accepted
in the face of overwhilming evidence that Rangoanana threatened a
colleague with violence and was for that reason dismissed.

Assuming the correctness of my conclusion, it cannot
seriously be argued that the action of Rangoanana did not render him
guilty of
misconduct. That being so, it seems to me that the
Appellant bank was entitled to dismiss him in terms of the conditions
of his contract
of

employment of which Clause 7 clearly provides in part:

"7. In the event of the Employee being

guilty of any breach of the provisions of this agreement
or of misconduct of any kind, whether during or out of office hours,
of which
the Bank shall be the

sole judge it shall be lawful for

the Bank to determine (terminate) this agreement at any
time without notice, anything to the contrary herein contained
notwithstanding,
in which event the employee shall only be entitled
to salary due up to the date of such dismissal."

(my underlining)

11/ In the light

-11-

In the light of all that has been said, it is obvious
that I take the view that Rangoanana's dismissal was not an act of
victimization
or unfair labour practice. On the contrary, there was
sufficient evidence in support of appellant's contention that the
dismissal
was based solely on the grounds disclosed in the letter of
18th August,1982.

The appeal is allowed with costs,

B.K. MOLAI JUDGE

17th August, 1984.

For the Appellant : Mr. Erusmus, For the Respondent :
Mr. Sello.