IN THE LABOUR APPEAL COURT OF LESOTHO
In the matter between
CHABELI LETEBELE APPELLANT
COMPANY (PTY) LTD 1ST RESPONDENT
DDPR – ARBITRATOR M. SENOOE 2ND RESPONDENT
EX TEMPORE JUDGMENT
Delivered Orally on : 4 November 2015
Moahloli AJ (The Assessors concurring)
 Applicant has been in the employ of 1st Respondent since 1990. He started off as trainee Technician. After a year’s probation he was appointed as Supervisor of Transmission at Katse. He was later transferred to work as Technical Instructor from 1992 until 2001. From 2001 to 2004, following a restructuring, he was employed as a Human Resources Officer.
 In 2004 he was transferred to the position of Electrician, which he interpreted to a demotion, since it was done without giving him a hearing. He alleges he has been underpaid ever since. He immediately wrote a letter of complaint, but the matter was never dealt with conclusively despite meetings he held with the human resources person, the legal office and even the CEO.
 In 2007 when 1st Respondent introduced a new grievance procedure, Applicant once again lodged his grievance
 On 3 February 2012 Applicant referred a dispute concerning underpayment of wages to the Directorate of Dispute Prevention and Resolution (DDPR), accompanied by an application for condonation of late referral. He argued that his referral was late because he had been sent from pillar to post without his dispute being definitively resolved. He said he had tried to exhaust domestic remedies before resorting to legal action.
 The DDPR dismissed the condonation application. It further held that it therefore did not have jurisdiction to entertain the referral. Applicant then approached the Labour Court on review, but his application was dismissed.
 Applicant then noted an appeal to this court, alleging that the Labour Court had erred and misdirected itself in several respects set out in the Notice of Appeal. The parties filed written heads and also made oral argument.
ANALYSIS OF EVIDENCE AND ARGUMENT
 In terms of section 227 (1) (b) of our Labour Code Order 1992 disputes other than unfair dismissals must be referred to the DDPR “within 3 years of the dispute arising”. That is to say, within 3 years of the dispute coming into being or coming into existence.
 It is easy to determine or set the date from which this 3 year period runs if the dispute in question consists of a discrete/clearly separate/readily identifiable ‘act or occurrence’, such as a suspension. But it is problematic where an employee suffers prejudice as a result of a decision whose effect may be continuous. [see Grogan, Labour Litigation and Dispute Resolution (2010) at 104-6; Du Toit et al. Labour Relations Law: A Comprehensive Guide (2015) at 576.
 The problem is compounded where an employee who has long been aware of a situation demands rectification of the situation, and the employer refuses.
 In the present case, the dispute which was referred to the DDPR was about under payment of wages. It concerns, not a single act of under payment but a ‘continuous act’. One is not dealing with a single event, but an ongoing practice or continuing activity which ceases only when the employer stops implementing the decision. The employer is not committing a single and separate unfair labour practice each and every time the Applicant is underpaid, but these payments are merely facts by which the existence of such continuous unfair practice is indicated.
 Therefore Applicant can argue that the date of the dispute is the date on which the employer finally refuses to correct the matter complained of. If that were not the case, employees might have to refer disputes before they have exhausted attempts to persuade the employer to remove the cause of their complaint.
 Authorities for this are Louw v Golden Arrow Bus Services (Pty) Ltd 1998 ILJ 1173 (LC), which was confirmed by SA Broadcasting Corporation v CCMA & Others 2010 ILJ 592 (LAC). In the latter case the court held that where discriminatory payments are continuing and repetitive, the date of the dispute does not coincide with the date on which the respondent employees were denied promotion. Consequently the referral date is ‘ongoing’.
 In casu Applicant’s dispute is about continuing and repetitive under payment. Therefore the date of referral can be designated as ‘ongoing’. Hence there was no requirement for Applicant to apply for condonation before the DDPR could conciliate its dispute.
 For these reasons:
1. The appeal is upheld.
2. The matter is remitted to the DDPR for conciliation and further handling.
KEKETSO MOAHLOLI, AJ
JUDGE OF THE LABOUR APPEAL COURT
Adv CM Likhoeli for Appellant
Adv R Ntšihele for 1st Respondent
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