C. OF A.
COURT OF APPEAL OF LESOTHO
matter between :
HIGHLANDS PROJECT CONTRACTORS RESPONDENT
Van den Heever, J.A.
appellant was the unsuccessful plaintiff in the court a quo (Kheola,
CJ). He instituted an action for reinstatement, and in
alternative for damages, arising from his dismissal from his employ
with the respondent (the defendant) as a
was explicitly and solely contractual. He alleged that he was
"unlawfully dismissed" for (he stated in further
particulars) "alleged absenteeism and refusal to obey
instructions". He did not seek to invoke the Labour Code.
material facts (his own evidence established) were briefly these. The
appellant knew that his performance as an employee was
regarded. He applied for leave to go on a training course. This was
refused, in the clearest terms, and for a reason
not challenged: that
his services were required. He nevertheless went on the course, which
lasted for several days. He was thereafter
summoned to a disciplinary
hearing (in terms of a procedure incorporated in his contract of
employment), in these terms :
"Notification of disciplinary hearing and charges preferred,
Annexure F. Name Mopeli, company number 3773, section: lab.
Technician. Please take notice that the following charges have been
preferred against you: Refusal to obey instruction and absenteeism.
You are requested to attend the disciplinary hearing on 10 November
1993 at 10.00 in the office of E Clech. Please indicate the
the witnesses and the worker representative you require at the
hearing so that they can be advised to attend".
appellant duly attended the inquiry. He was assisted by a
inquiry ran its course, as did a series of internal appeals. The
result was his dismissal.
us, his counsel argued that the learned Chief Justice had erred in
one or more of four respects.
it was said that the charge was insufficiently "motivated".
In this regard, it has to be said that the complaint
pleaded. In any event, it lacks substance. There is no suggestion
that the appellant was at sea as regards the complaint
His legal representative did not raise the issue prior to or at the
commencement of the inquiry. There was only the
single incident under
discussion. The attempt to force the facts of this case under the
general principle of Monyobi v Minister
of Justice C. of A. (CIV) No.
30 of 1996 is wholly contrived. If "it is obvious what is in
issue, the employer is not obliged
solemnly to inform the employee of
what he or she already knows" (Cameron The right to a hearing
before dismissal 1986 ILJ
183 at 202).
it was argued that the appellant in any event could not competently
required to face two charges in relation to a single incident. This
contention is also
merit. If a single incident comprehends (for instance) disobedience
and an assault, or intoxication and disobedience, there
is no reason
why two charges should not be preferred.
third place, it was contended, the facts did not establish a refusal
to obey an instruction. This was because, when the appellant's
request was refused, he was not simultaneously told in express terms,
"......and you must report for work in the usual way
(or words to that effect).
argument is equally without merit"Leave" means permission.
If leave is not given, the standing requirement of attendance
subsists. Otherwise viewed, the instruction is implicit. It is so
obvious that it does not require daily reiteration.
it was asserted that the employer could not dismiss for "mere"
absenteeism. There are three answers to this contention.
The first is
that the argument does not even arise unless the appellant is
successful in each of the preceding three contentions
- which, as I
have noted, are all without merit. The second is that the
disciplinary guidelines - suggesting that in the general
things, a warning is
to absenteeism - are only that: guidelines. They are not an
penalties. The employer is expressly allowed a margin of
appreciation. The third is that even if the appellant's conduct did
not entail the defiance of an obvious instruction that he be at work,
the absenteeism was no "mere" absenteeism. As Mr
submitted for the respondent, the period involved was significant;
the absenteeism was not mitigated by compelling personal
circumstances; the employer was prejudiced (it was short-staffed and
needed the appellant); there was no remorse, only defiance.
accordingly conclude that no basis has been shown to disturb the
finding and order of the learned Chief Justice. In fact, I would
that the appeal was entirely without merit, and should not
responsibly have been brought.
appeal is dismissed with costs.
JUDGE OF APPEAL
at Maseru on this 15th day of October, 1999
Appellant: Mr Ntlhoki
Respondent: Mr Woker
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