REPORTABLE
C of A CIV/10/99
IN THE COURT OF APPEAL OF LESOTHO
In the matter between
CGM INDUSTRIAL (PTY) LIMITED APPELLANT
and
LESOTHO CLOTHING AND ALLIED WORKERS
UNION AND OTHERS RESPONDENTS
Held at :
Maseru
Coram;
Friedman JA
Steyn P Kheola JA
JUDGMENT
Friedman JA:
Appellant is a company with its headquarters at the Thetsane Industrial Estate in Maseu where it conducts a clothing factory. Appellant employs some 1500 employees. On 11 February 1998 one 'Matanki Mokhantso, purporting to act on behalf of the employees, handed appellant's managing director, Adrian Chang, a document containing a list of 37 "grievances". The document ended as follows:
"The grievances have been compiled at one place by all employees of the
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firm. We have noted that these grievances may destruct good relations if they are not attended to immediately. We therefore request that these problems be attended to and resolved by the 12/2/99 in the morning. If they are not resolved we will take further action after lunch."
On 12 February 1998 the employees arrived at the factory at the normal time but did not commence work. Three warnings were given to the employees to return to work or face dismissal. These warnings went unheeded. On 13 February 1998 appellant terminated their services on the grounds that they had participated in an illegal strike and had refused to resume work despite repeated warnings.
On 14 May 1998 an application on notice of motion was launched in the High Court by Lesotho Clothing and Allied Workers Union (LECAWU) as first applicant and 2480 further applicants, all of whom were alleged to be employees of appellant. Chang's statement that appellant employed only 1500 employees and that of the 2480 applicants 16 had resigned and a further six were not in the employ of appellant, was not refuted. It is consequently impossible to determine which of the 2480 applicants were in fact employed by appellant. They will nevertheless be referred to herein collectively as respondents. Nothing, however, turns on this point except in regard to costs which is dealt with at the end of this judgment.
In the application launched in the High Court an order in the following terms was sought:
"1. Declaring the purported dismissal of applicants to have been unfair, unlawful and null and void and of no force and effect.
Directing the respondent to (I) reinstate applicants or alternatively (ii) to pay applicants damages in the sum of monthly salary from the purported date of dismissal to date of reinstatement or payment.
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3. In the event that this Honourable Court does not order reinstatement respondent be directed to pay applicants their notice money.
Further and/or alternative relief.
Costs of suit."
The Court a quo (Maqutu J) made the following orders:
"(a) It is declared that the dismissal of applicants was unlawful and respondent is directed to pay them notice money to regularise their termination of employment.
There will be no order as to costs on account of the state of applicant papers and the delay in bringing this application."
Against these orders appellant noted an appeal on a number of grounds. For the purposes of this judgment it is necessary to consider only one of those grounds, namely that the matter was one which fell within the exclusive jurisdiction of the Labour Court and that the court a quo consequently had no jurisdiction to make the orders which it did. The alleged lack of jurisdiction of the court a quo was raised as a point in limine which was dismissed by Maqutu J in his judgment.
Respondents noted a cross appeal on the grounds that the court a quo erred in not awarding costs to them and in not ordering their reinstatement or alternatively payment of their salaries until the date of their reinstatement.
Section 22(1) of the Labour Code Order, 1992 ("the Code") established a Labour Court. The court is presided over by a president or deputy president appointed by the Minister, who shall be persons qualified in law with experience in labour relations. (Section 23(1)). For the rest the court is composed of an equal
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number of representatives of employers and employees as well as an equal number of persons having experience or knowledge of labour relations from an employee's and a management point of view respectively. (Sections 23(5) and (6)).
In section 24 the "power, authority and civil jurisdiction" of the Labour Court is set out. In terms of section 24(1 )(i) the Labour Court is given the power:
"To determine whether an unfair dismissal has occurred and if so, to award appropriate relief."
Section 25(1), at the time of the enactment of the Code, read as follows:
"The jurisdiction of the Labour Court shall be exclusive as regards any matter provided for under the Code, including but not limited to trade disputes. No ordinary or subordinate court shall exercise its civil jurisdiction in regard to any matter provided for under the Code."
By section 4 of the Labour Code (Amendment) Act 1977, Act No.9 of 1997, section 25(1) was amended by the deletion from the second sentence of the words "ordinary or".
Mr. Mosito. who appeared for respondents, submitted that respondents' dismissal was unlawful, as opposed to unfair, and that the question of the lawfulness or otherwise of the dismissal was one on which the High Court was empowered to adjudicate. He based his submission that the dismissal was unlawful on the allegation that respondents were not given an opportunity of defending themselves prior to their dismissal. In developing this submission he referred to section 66 of the Code which deals with the dismissal of employees. Section 66(l)(b) reads as follows:
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"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 -
connected with the conduct of the employee at the workplace "
Section 66(2) reads as follows:
Any other dismissal will be unfair unless, having regard to all the circumstances, the employer can sustain the burden of proof to show that he or she acted reasonably in treating the reason for dismissal as sufficient grounds for terminating employment."
The relevant portion of section 66 (4) reads as follows:
"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, in light of the circumstances and reason for dismissal, the employer cannot reasonably be expected to provide this opportunity."
Mr. Mosito submitted that an employee acquired a right, in terms of section 66 (4), to be given an opportunity of defending him or herself, subject to the qualification which follows the word "unless". That right, being a legal right, was -so he submitted - justiciable by the High Court. The High Court's jurisdiction in such a case, so it was argued, was concurrent with that of the Labour Court. The Labour Court's power, in terms of section 24(l)(i) of the Code, to determine whether a dismissal is unfair, did not, according to Mr. Mosito's argument, exclude the High Court's concurrent jurisdiction to determine whether the dismissal is unlawful.
I do not agree. Section 25(1) of the Code confers exclusive jurisdiction on
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the Labour Court '"as regards any matter provided for under the Code, including but not limited to trade disputes". The determination of the question whether a dismissal is unfair involves inter alia a consideration of whether the provisions of section 66(4) have been complied with. If those provisions have not been complied with, the dismissal would be unfair. The consideration of the compliance or otherwise with section 66(4) involves a factual determination, namely whether the employer has been given an opportunity of defending himself, and if not, whether the circumstances and the reasons for dismissal relieve the employer of the duty to give the employee a hearing before dismissing him. The issues dealt with in section 66 are all matters"provided for under the Code" (section 25(1)) and are thus matters in respect of which the Labour Court has exclusive jurisdiction.
In any event, the fact that the determination of whether a dismissal was unfair involves a consideration of the lawfulness or otherwise of the conduct of the employee, does not serve to remove the question from the ambit of what is meant by an unfair dismissal. See National Union of Metal Workers of SA v Vetsak Co-operative Ltd 1996 (4) SA 577 (A) at 593 B-C where Nienaber JA, in dealing with the question of fairness in relation to the dismissal of striking employees, stated:
"The ultimate determinant is therefore fairness and not the lawfulness of either the dismissal or the strike. That does not mean that the lawfulness or otherwise of the conduct of either party or of the strike is irrelevant. These can be very real factors in the determination of what is fair in the circumstances".
In regard to the exclusivity of the Labour Court's jurisdiction as provided for in section 25( 1) Mr. Mosito argued that that section could not oust the jurisdiction of the High Court which, so he contended, had concurrent jurisdiction with the Labour Court once a dismissal involved both unfairness and unlawfulness. For this
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argument he relied on section 119(1) of the Constitution of Lesotho which reads as follows:
"There shall be a High Court which shall have unlimited original jurisdiction to hear and determine any civil or criminal proceedings and the power to review the decisions or proceedings of any subordinate or inferior court, court-martial, tribunal, board or officer exercising judicial, quasi-judicial or public administrative functions under any law and such jurisdiction and powers as may be conferred on it by this Constitution or by or under any other law.1'
This section must, however, be read together with section 118 of the Constitution. Section 118(1) provides that the judicial power shall be vested in the courts of Lesotho which shall consist of, inter alia, "such tribunals exercising a judicial function as may be established by Parliament". (Section 118(l)(d)). The Labour Court is a tribunal exercising a judicial function which has been established by Parliament. The manifest purpose of the legislature in establishing the Labour Court was to create a specialist tribunal with expertise in labour matters. As Botha JA said in Paper. Printing. Wood & Allied Workers' Union & Pienaar NO 1993 (4) SA 621 (A) at 637 A-B:
"The existence of such specialist Courts points to a legislative policy which recognises and gives effect to the desirability, in the interests of the administration of justice, of creating such structures to the exclusion of the ordinary Courts."
See also Amalgamated Clothing & Textile Workers Union v Veldspun Ltd 1994 (1) SA 162 (A) at 173 G-H.
That is precisely what the legislature sought to achieve by the enactment of the Code. Its power to do so emanates from section 118(1) of the Constitution.
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That the Labour Court which was so established, was intended to function in terms of the legislation by which it was established, is recognised in section 118(2) of the Constitution. That section reads as follows:
"The courts shall, in the performance of their functions under this Constitution or any other law, be independent and free from interference and subject only to this Constitution and any other law", (emphasis supplied).
The words "any other law" relate to the law by which the court or tribunal in question (in the present case, the Labour Court), was established.
Section 119(1) of the Constitution cannot be interpreted in isolation. It must be construed in the light of the Constitution as a whole, but particularly in the light of section 118. Thus construed, the original jurisdiction vested in the High Court in terms of section 119, does not detract from the exclusive jurisdiction conferred by Parliament, in terms of the Constitution, on the Labour Court established in terms of the Code.
In the present case what was sought in paragraph 1 of the notice of motion was a declaration that the dismissal of respondents was "unfair, unlawful and null and void and of no force and effect". From the affidavit in support of the notice of motion it is clear that respondents' complaint was that their dismissal was "precipitate" and that they were not afforded "an opportunity at the time of dismissal to defend themselves against any allegations made." These are matters which the Labour Court is empowered to determine when it decides whether a dismissal was unfair. Despite the terminology used in paragraph 1 of the notice of motion in describing the relief sought, what respondents were in fact seeking was a declaration that their dismissal was unfair. That is a matter in respect of which the
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Labour Court has exclusive jurisdiction and in regard to which remedies are prescribed which the Labour Court may impose should it find that the dismissal was unfair. See section 73 of the Code.
Mr. Mosito sought to rely on a passage from the judgment of van den Heever AJA in Lucy Lerata and 26 others v Scott Hospital (C of A) 1991-1996 Vol1 LLR 315 at 321 in support of his argument that the Labour Court's jurisdiction did not include the power to decide on the lawfulness or otherwise of a dismissal. In the passage relied on the learned judge said that the Labour Court had no power "to determine whether dismissal was lawful (as distinct from having been unfair)". That case was an appeal from a judgment of the High Court in a review of a decision of the Labour Court which had held that the employees' dismissal was "ineffective" in that the employer (the Hospital Board) had not validly resolved to dismiss them. (The Labour Court had refrained from deciding whether the dismissal was unfair.) The High Court held, in the review, that the Labour Court had no jurisdiction to give the decision it did because that was a matter of law which did not fall within its jurisdiction. The High Court's decision was upheld on appeal. The passage from the Lucy Lerata case does not detract from the construction placed on the Labour Court's jurisdiction in this judgment.
It is important to emphasise that in matters provided for under the Code, the High Court has no jurisdiction and that only the Labour Court has jurisdiction. See in this regard Attorney General v Lesotho Teachers Trade Union & Others (C of A) 1991-1996 Vol.1 LLR 16 at 25. Failure to recognise the exclusivity of the Labour Court's jurisdiction in matters provided for under the Code, would inevitably lead to the unsatisfactory practice of what has been termed "forum shopping". C f the Paper. Printing. Wood & Allied Workers' case, supra, at 640 G-H.
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In the light of the conclusion I have reached on the jurisdictional issue, it is unnecessary to consider any of the further grounds on which the appeal was noted. For the reasons stated herein, the appeal must succeed and the cross appeal must fail.
I turn now to the question of costs. In view of the multitude of respondents it would, in my judgment, be both impractical and unreasonable to simply make an order that respondents are to pay the costs. Such an order could create insuperable problems in regard to taxation and execution. It would, in the circumstances, be fair and reasonable to order the costs to be paid by respondents jointly and severally, thus leaving the successful appellant with a choice when seeking to recover its costs.
The order which I make is as follows:
The appeal is upheld with costs.
The cross appeal is dismissed with costs.
The costs are to be paid by respondents jointly and severally, the one paying the others to be absolved.
G. FRIEDMAN
JUDGE OF APPEAL
I agree :
PRESIDENT
J.L. KHEOLA
11 Delivered on this the 15th day of October, 1999.
For Appellant : Mr. M.T.Matsau
For Respondents : Mr. K. Mosito
