CIV/APN/147/98

IN THE HIGH COURT OF LESOTHO

In the matter between:

SEEISO KHETHISA APPLICANT

AND

LESOTHO MILLING COMPANY RESPONDENT

JUDGMENT

Delivered by the Honourable Mrs. Justice K.J. Guni on the this 9th day of November 1999

The applicant herein, was an employee of the respondent, Lesotho Milling Company (Pty) Ltd, since 23^rd November 1993. He was dismissed from employment on 22^nd October 1997. At the time applicant had been working at the respondent company, as a professional electrician for a period of approximately four (4) years.

As a qualified electrician, with those years of experience, this applicant should

have been able to discharge his duties diligently. Professionalism demands

2 maintenance of standards commensurate with one's qualifications, training, calling

and maturity of his or her human nature. This applicant while performing his duties at the respondent company, did not even remotely associate himself with the above characteristic qualities. The characteristics which this applicant endeavoured to establish as an employee at the Lesotho Milling Company (Pty) Ltd are incompetence, inefficiency, obstinacy and insolence. He refused to accept any authority above him. He refused to take and follow instructions from his superiors. He failed to execute his duties diligently. The papers filed of record disclose in short, that this applicant was a very bad worker.

According to his own admissions, he would not accept instructions to come to work on Saturdays when he is on standby. His ground for refusing to obey such instructions is that he was not given prior notice preferably on Thursday before that Saturday that he will be called to come to work on Saturday. What is the purpose of being put on standby? It makes none sense for a person who is on standby to demand yet another prior notice to be called on duty. Being on standby is itself prior notice to be called on duty. To be on standby means you are ready and available, only waiting to be called. For this applicant to refuse to come on duty while on standby because he had to go to check the wires elsewhere where he was moonlighting, was an inexcusable arrogance. He cannot serve the

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two masters at one and the same time. He had to choose or be relieved. At the hearing of his misconduct inquiry, after admitting all the charges against him, this applicant was asked by the Managing Director what should be done with him. Various options were mentioned. When applicant described how he was doing his private work, at the time he should be working at the respondent milling company, Managing Director suggested to him that he should resign. The applicant refused. He insisted on working for the two masters at one and the same time. Of course he pleases one master at the expense of the other. The respondent milling company was the master who paid him while he worked on his private jobs. That was not satisfactory. The Managing Director corrected it by dismissing the applicant.

The law governing employment contracts and their termination is LABOUR CODE ORDER No. 24 of 1992. The specific provisions of the said Order, which must be considered in the determination of the present matter are sections 63, 64 and 66. The applicant has no problems with the reasons for the termination of his contract of employment. His problem concerns the time factor.

The applicant avers that he was called to the boardroom where he found three other employees of the respondent company. Allegations of misconduct against him

4 were put before the board. He was charged with failure to keep the cover on the

electric motor tightly bolted and refusing to tighten the bolts when specifically instructed to do so. He was further charged with refusal to come for work on Saturday the 18^th October 1997, when he was on standby for duty call. The applicant admitted all the allegations. He explained that he refused to tighten the bolts, because only one bolt was loose and that he could not tighten the bolts while the motor was working. At the same time he would like this court to believe that there was no need to tighten the bolts because no bolts were loose or even if they were loose, they posed no danger to machinery and/or personnel operating the mill. There seems to be disputes. The question is whether or not there were loose bolts on the cover of the motor? The applicant contradicts himself when answering this question. In the first place, he seems to be denying that there were any loose bolts. In the second place he seems to admit that at least one bolt was loose. In an attempt to get away from liability for his refusal to tighten the bolts, he claims that loose bolts and/or loose motor cover posed no danger to machinery or personnel operating the machinery. This applicant must have seen this fact will be disputed because he had been found guilty of misconduct by leaving the cover on the electric motor not tightly bolted.

The manufacturer saw it fit to make the tightly bolted cover on the motor. The

5 managing director and the supervisor are of the view that the cover must be kept

tightly bolted on the motor. The applicant is of the different view point as shown by reason for refusing to obey instructions to keep those bolts tight. He has no ground to hold that point of view. There is no reason for me to accept his view

point which I reject.

The second charge consisted in his refusal to come to work when called from standby position on the 18^th October 1997. He admits refusing to come to work on the ground that he had his own private business to attend to at that same time. He was further accused of displaying a bad attitude and bad work ethics of non-cooperation with his colleagues. This is the only charge which the applicant denied. The rest of the charges were admitted by him

After having been found guilty of misconduct he was instantly dismissed. This is what the applicant does not accept. He has come to court to ask for reinstatement on the ground that he was not given an opportunity to prepare his defence. He relies on section 66(4) LABOUR CODE . That subsection reads as follows:-

"(4) Where an employee is dismissed under subsection (1 )(a) or (b) of this section, he or she shall be entitled to have an opportunity at the time of dismissal to defend himself or herself against the allegations made, unless,

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in light of the circumstances and reason for dismissal, the employer cannot reasonably be expected to provide this opportunity. The exercise or non-exercise of this right shall not act as any bar to an employee challenging the dismissal pursuant to the terms of a collective agreement or contract of employment, or under the provisions of the Code." [My underlining].

At the hearing of Misconduct Inquiry against this applicant, respondent did precisely what this section demands. This applicant was given an opportunity to defend himself. He offered those explanations which he is now putting before this court. He cannot expect the court to question, let alone quash, the decision and reasons for his dismissal. The applicant's admission for neglecting to tighten the bolts on the cover of the electric motor and his point blank refusal to tighten those bolts when instructed to do so, warrants instant dismissal. His refusal to come to work on the ground that he has other jobs elsewhere is equally sufficient by itself to warrant instant dismissal from respondent company. There was no unfairness. Even if there was, "a private employer exercising a right to terminate a pure master and servant contract is not, at common law, obliged to act fairly." These are the words of MOHAMED JA (as he then was) in KOATSA v THE NATIONAL UNIVERSITY OF LESOTHO 1991-92 LLR 163 at 169

7 The reading into the section 66(4) of "a time to prepare defence" is misleading.

The section provided for an opportunity to defend himself. The applicant had that opportunity. He defended himself with or without preparation. What did he need to prepare? There are no complications of any type. There are no technicalities allegedly involved. He admitted the allegations. Even before this court he still persists that he refused to take and follow specific instructions and that he refused to report for duty when he was called from a standby position. He was heard on 22^nd October 1997 - six months later when he filed this urgent application his defence was still the same. He also did not indicate to anyone that he was unprepared and that he needed time to prepare his defence. He does not complain of being refused time to prepare. He never asked for it. He did not need it. His defence has not changed despite the length of time that had lapsed from the date of hearing of misconduct proceedings to the date of this application. By refusing to accept authority and refusing to take orders from superiors what complication can be found there? Why would he need time to prepare to know what he did and/or said? There is no merit in this application. It is dismissed with costs.

JUDGE
9^th November 1999

For Applicant: Mr. Maieane
For Respondent: Mr. Malebanye