Appeal from judgment of the Labour Court – Applicable standard of appellate review restated – Trial court’s findings of fact and credibility are presumed to be correct and will be disturbed on appeal only if there is a material misdirection or if they are clearly wrong – Retrenchment for redundancy caused by refusal of employee to retrain/reskill where his employer’s business was reorganized for technological reasons as a result of a merger – Requirement to retrain is a valid alternative to dismissal – Failure by court a quo to properly consider evidence and arguments relating to statutory severance pay and pension claims.
LABOUR APPEAL COURT OF LESOTHO
In the matter between:
KOALEPE MAKATSELA APPELLANT
ECONET – TELECOM LESOTHO RESPONDENT
Coram: His Honour Justice Keketso Moahloli
Assessors: Messrs S. Makhasane and R. Rampa
Delivered: 1st November 2019
 Mr Koalepe Makatsela (hereafter “the Appellant” or “Makatsela”) appeals against the judgment of the Labour Court which held that his dismissal by the Respondent (hereafter “Econet”) was procedurally and substantively fair, and ordered Econet to pay him pension in the sum of M100 585.00 within 30 days of the issuance of the judgment.
 Makatsela’s grounds of appeal are that the court a quo erred in holding -
(i) that there was a need to second the Appellant to Zimbabwe, whereas the evidence showed that Appellant already had all the necessary skills for mobile network and as a result there was a no need for his secondment;
(ii) that consultation contemplated by the Codes of Good Practice was held, whereas the evidence showed that although there was correspondence in the form of letters and meetings where the issue of secondment was discussed the Appellant was not consulted on the issue of redundancy that led to his dismissal;
(iii) that Appellant conceded during cross-examination that severance pay was paid to him, whereas the evidence showed that severance pay as contemplated by statute was not paid to the Appellant; and
(iv) that his dismissal was fair both substantively and procedurally, whereas the evidence showed that it was not.
 Econet opposes the appeal, and has also filed a cross appeal in which it objects to aspects of the judgment of the court a quo on the grounds that Acting Deputy President erred and misdirected himself in holding –
(i) that the Respondent is liable to pay the Appellant the sum of M100 585.16 being his pension from 1989 to 2008 in as much as the Appellant was not its employee at the time and the Respondent had not yet been incorporated; and
(ii) that the Respondent was liable to pay the Appellant the aforesaid sum of money despite evidence showing that the Appellant was paid all his terminal benefits including pension.
The applicable standard of appellate review
 It is trite law that appeals may be taken on matters of procedure, fact or law. Where, as in the present case the appeal turns largely on the Labour Court’s findings of fact and the inferences it draws from facts, the appellant’s case is predicated to a large extent on the allegation that the Labour Court misinterpreted the evidence or disregarded material evidence that favoured the appellant.
 The Appellant in casu is asking the court to set aside the conclusion reached by the court a quo, and substitute its finding for that of that court. It must be borne in mind that the normal rule in appeals of this nature is that “the trial court’s findings of fact and credibility are presumed to be correct; and that these findings will be disturbed on appeal only if there is a material misdirection or if they are clearly wrong”.
 This appeal, to a lesser extent, also challenges whether the Labour Court’s interpretation and application of the law to the facts was right or wrong.
 In appeals the higher tribunal, when deciding whether the decision of the tribunal whose judgment or order is on appeal was right or wrong, reaches its decision on the evidence led and material before the court a quo. Consequently the appellate tribunal will not normally entertain points different from those raised in the court of first instance.
Analysis of argument
 The facts and the issues in the court below, are fully set out in the detailed judgement of the Acting Deputy President: LC/23/2011, as well as in the Record of Proceedings.
 I agree with the Labour Court’s characterisation of the nature of the dismissal in this case. What occurred in casu is the type of retrenchment contemplated in paragraph 19 (1) read together with 19 (2) (a) & (c) of the Labour Code (Codes of Good Practice) Notice 2003. It was a dismissal arising from a redundancy caused by the re-organisation of the business for technological reasons as a result of the merger of Telcom Lesotho Ltd and Econet Ezicell Ltd in 2008 and the consequential change in the nature of the business. This introduction of new technology (viz. provision of mobile services) affected work relationships by requiring some employees to adapt to the new technology. The employer adapted to the change by requiring employees such as Makatsela to acquire additional practical skills in mobile technology, hence his secondment to Zimbabwe. The new technology did not necessarily require a reduction in the headcount, but required existing employees without the required skills to be reskilled or be replaced with employees who possessed the required skills. It was the prerogative of Econet’s CEO and Board to determine what retraining was required by its employees, and Makatsela could not second guess them in this regard, let alone the courts.
 It is accepted practice in such situations that an employer may require an employee to retrain due to the changing needs of the business. And if an employee unreasonably refuses to retrain and the employer can demonstrate that the retraining is essential either to improve the employee’s performance, or to meet business requirements then an employer may have no option but to dismiss. The retraining in such cases is viewed as one of the steps that can be taken to avoid retrenchment or reduce the number of dismissals. It is one of the acceptable alternatives to retrenchment. Employers are required during consultations to explore possible alternatives to dismissal. In appropriate cases an employee who refuses to retrain without an acceptable reason will be found to be fairly dismissed. I therefor cannot, in the circumstances, uphold the Appellant’s contention that the court a quo erred in holding that the dismissal was substantively fair.
 Regarding the alleged procedural unfairness, the legal prerequisite in dismissals of this nature is that of consultation prior to dismissal. When Appellant was seconded to Zimbabwe together with other senior staff, they were notified that the main and driving objectives of this were:
“1. To strengthen and multi-skill our staff and enhance skills and competencies.
It is common knowledge that ETL is predominately strong in traditional fixed network technology, whilst EWZ is predominately strong in mobile technology. Technologies in our business have increasingly become mobile.
2. Cross cultural exchange
To enhance the work ethics and cultural enrichment through a two way North – South, South – North staff deployment. This is critical in a business that operates in multiple environments and countries.
3. Standardisation of systems and processes
The Econet group of companies is undertaking a standardisation of systems and processes and in order to enhance this, the cross learning and imparting of knowledge both ways through exchange is a necessity”
 Right from the onset Makatsela flatly refused to go to accept the secondment because of personal circumstances and dissatisfaction with his contract of secondment. When Econet insisted that he move to Zimbabwe, because the objective of the secondment was to expose affected staff to different Group operations with a view to facilitating exposure to diversity and the acquisition of new knowledge, and addressed his contractual concerns, he was unmoved.
 After further meetings and exchange of correspondence on this issue, Makatsela told Econet that if they continued to pressurise him to take up the secondment “then it may be necessary to open negotiations towards severing the relations”. To this, the Chief Human Resources Office replied as follows:
“I have to advise that your secondment to Zimbabwe is a Group decision, which was informed to all Management by the Group Chairman during his visit in October 2009, and the Econet Telecom Lesotho CEO on the 16th and 17th December 2009 to Management and staff respectively as a principle decision taken by the Group in the interest of all Country businesses, and this was further approved and ratified by the Board in February 25th 2010 specific to you.
ETL is merely, implementing a Group and Board decision, and your refusal to comply with this decision will be construed as refusal to obey a lawful instruction by the Employer to Employee.
I have to confirm that I do not have the mandate to negotiate any severing of relations with you based on your refusal to be seconded to Zimbabwe as instructed.”[Emphases added]
 Further exchange of letters followed, with each side sticking to its guns. There was even a discussion of terms of separation, without the matter being laid to bed, even after the involvement of Makatsela’s lawyers. On 15 September 2010, the CEO of Econet finally decided to sever Makatsela’s service by a letter which reads, in part:
“Dear Mr. Makatsela
Our letter of August 31st 2010 and your response of September 6th 2010 on the subject refer.
The Management of ETL has come to a final decision regarding the issue of your secondment to Zimbabwe. You will no doubt recall that the secondment to Zimbabwe was necessitated by pressing operational requirements of the Company, which you are well aware of. Despite this it has not been possible to persuade you to take up the settlement. In this regard you have rendered yourself redundant as the Company is unable to pursue its operational requirement with you as its employee.
Consultation aimed at avoiding your redundancy reveal that no other alternative but to terminate your employment for operational reasons. Your correspondence on the subject also make it clear that you see separation as the only alternative, and you have indeed not proffered any other alternative; we also cannot see what other choice there is.
In the circumstances the Company accepts that separation is the only option. Your service will be terminated as at 30th September 2010.
The company without prejudice and in recognition of your long service will pay you a separation package of six (6) months’ salary payable by the end of September 2010. You are therefore requested to return Company equipment in your possession earlier than the separation date.
As previously stated in our letter to you, the Company wants an amicable solution to the matter, and in this regard, ETL takes this opportunity to wish you well in your future endeavors
Yours Sincerely,” [My emphases]
 In view of all this correspondence and meetings over a period of about nine months, I find it very difficult to agree with Appellant’s contention that he was dismissed without proper consultation. It was clear from him right from the beginning that his adamant refusal to accept the secondment would have a negative effect on his continued employment. The Respondent made it very clear to Appellant in July 2010 that by refusing the secondment he as frustrating the company’s ability to achieve its operational requirements foreshadowed by the secondment objective, leaving the company with no option but to accede to his demand for separation negotiations. The CEO’s letter to Makatsela is quoted in extenso below, as it squarely alludes to the question of redundancy, even though not using that term:
“Secondment to Zimbabwe
Following the comprehensive consultations with you regarding the issue of your secondment to Econet Wireless Zimbabwe (EWZ) it appears that the discussions have reached a deadlock. The company records that, as discussed, your secondment to EWZ was an indispensable strategic move that would enable it to achieve its operational requirements namely:
We note however that, as per your letters of March 5th 2010, April 27th 2010, May 17th 2010 you are adamant that under no circumstances will you agree to the proposed secondment.
Now given the fact that ETL requires to attain the above knowledge and skills through its senior engineers like yourself, and in cognizance with your adamancy of you not going to Zimbabwe, and your desire to sever with the Company if compelled in implementing its strategic objectives, ETL therefore deduces that your preferred alternative in achieving the resolution of the matter is to enter into final negotiations.
As part of the resolution of the secondment issue and as expressed in your March 5th 2010 letter in resolving the Company’s strategic needs, simultaneously addressing your personal difficulties, which have resulted in this deadlock, the Company confirms its acceptance of your suggestions to enter into final negotiations, and would like to have your written confirmation of your position within five days of receipt of this letter on the subject.
Yours Sincerely,” [My emphases]
 As far as Makatsela’s claim to statutory severance pay is concerned, it seems clear from the Record of Proceedings that whereas he accepted that he was paid a long service award or separation pay amounting to M420 030.00, he insisted that this was not the statutory severance pay he expected (of M678 510.00) for 21 years of service at the monthly rate payable at the time of termination (i.e. M70 005.00). In my view the Acting Deputy President consequently erred in finding that during cross examination Makatsela conceded that he was paid his statutory severance pay upon termination of his service.
 Regarding the award of M100 585-16 for pension, I find that the court of a quo dealt with the whole matter in a very cursory manner, without making a full and proper interrogation of the evidence, submissions and applicable law (particularly the legislation regarding the transfer and vesting of the assets and liabilities of the predecessors of the Respondent).
 In the result I order as follows:
1. The appeal against paragraph 1 of the award of the court a quo is dismissed.
2. The issues of the statutory severance pay and pension payable to the Appellant are referred back to the court a quo for fresh reconsideration of the evidence and arguments, and determination in the light of the remarks of this court.
3. No order is made as to costs.
JUDGE OF THE LABOUR APPEAL COURT
Adv. N. Pheko for the Appellant
Mr. Q. Letsika for the Respondent
 Record of Proceedings (“RP”) at page 18
 RP 3-4, with few emendations
 RP 23, with slight emendation
 Manhattan Motors Trust v Abdullah (2002) 23 ILJ 1544 (LAC) at ; Toyota SA Motors v Radebe (2000) 21 ILJ 340 (LAC)
 see RP 5-18
 Government Notice No.4 of 2003 (Supplement No.2 to Gazette No.5 of 22nd January, 2003) [hereafter “the CGP”]
 As contemplated in paragraph 19 (2) of the CGP
 See paragraph 19 (3) and (4) of the CGP
 Minter v Wellinborough Foundaries Ltd  IDS Brief 202; Jury v ECC Quarries Ltd,
 Appellant’s Bundle of Documents (“ADP”) at 95-6 [Staff Notice of 8 January 2010]; RP 109-111
 ADP 107
 ADP 107-9
 ABD 135 [Annexure “KM 29” dated 5 March 2010]
 ABD 136 [Annexure “KM 30” dated 8 March 2010
 ABD 152 [Annexure “KM43”]
 ABD 142-3 [Annexure “KM 36” dated 28 July 2010]
 RP 76-7 and 95
 such as the Tele-Com Lesotho Company (Proprietary) Limited (Vesting) Notice 2000, the Privatisation Act 1995 etc
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