IN THE LABOUR COURT OF LESOTHO LC/REV/63/12
HELD AT MASERU
In the matter between:
LIEKETSENG MOQHA 1st APPLICANT
FUMANE PHOMANE 2nd APPLICANT
`MALIKELELI TS`EPE 3rd APPLICANT
C & Y GARMENTS 1st RESPONDENT DIRECTORATE OF DISPUTE PREVENTION 2nd RESPONDENT
Review of an arbitral award - For:- (i) failure on the part of the Arbitrator to appreciate that the applicants had been found guilty on the basis of a defective charge; (ii) that the award of punitive costs was not in order and; (iii) that he generally failed to apply his mind to the case that was before him - The Court finds no irregularity on the part of the Arbitrator on all grounds raised - Review application is therefore dismissed.
1. Applicants are all former employees of the 1st respondent and were all dismissed around November, 2011, following disciplinary hearings in which they were charged with contravening Regulation 9 (b) of 1st respondent’s Regulations for their unauthorised absence from work on varying dates.
2. It is common cause that applicants had all received final warnings relating to absence from duty on three occassions, rendering themselves susceptible to dismissal. They, however, contended that the charge preferred against them was wrong. They had been charged for “absenteeism without permission” and their argument was that it was a wrong charge because the Regulation provided for “absenteeism without a valid excuse.” The said regulation read (quoted verbatim):
First absenteeism without reasonable excuse shall attract a first written warning followed by a second, which shall be the final written warning. On the third absence the employee renders himself/herself liable for dismissal for a misconduct of absenteeism, which means it is dismissal without terminal benefits, but after a disciplinary hearing.
3. Aggrieved by their dismissals, applicants referred claims of unfair dismissals to the Directorate of Dispute Prevention and Resolution (DDPR) in A 0002/12, but unfortunately lost. The learned Arbitrator concluded that the fact that the charge was not couched in the specific terms of the Regulation was neither here nor there. For him, nothing turned on the use of the term “without permission” as opposed to “without reasonable excuse” because at the end of the day applicants were found to have been absent from work without authority, and even conceded to that fact. He found their claim to have been without a legal base and dismissed it with costs.
4. The applicants were dissatisfied with the learned Arbitrator’s decision and lodged the present review application. They prayed that the award be reviewed and set aside on the following grounds:-
(i) That the learned Arbitrator failed to appreciate that the charge was defective;
(ii) Made an improper order of costs against the applicants; and
(iii) Generally failed to apply his mind to the claim that was before him.
5. Applicants’ Counsel reminded the Court that as a reviewing Court, it does not have to delve into the merits of a case but has to look at procedural improprieties that could have occurred at the DDPR. He pointed out that there were procedural flaws with the learned Arbitrator’s award in that the charge preferred against the applicants was defective in that the 1st respondent had failed to frame it properly; and made a conclusion of fact without evidence. As far as he was concerned, the conclusion was not motivated. He submitted that he came to the conclusion that the facts were common cause on his own accord without leading evidence.
THE COURT’S ANALYSIS
6. On applicants’ Counsel’s main contention that the learned Arbitrator decided on his own accord that the facts were common cause, he indeed indicated in his opening remarks that the facts of the case were common cause and made a summary thereof. He remarked at p.1 of the record that:-
… conciliation has failed and mostly facts herein are common cause, the issue for determination is the nature of the charge preferred against the applicants. Just to confirm facts that are common cause for the record. The applicants were absent without permission on the 10th September, 2011 and it is also common cause that the applicants were on a final written warning. The applicants were charged with absenteeism without permission thus contravening regulation 9 (b) of the respondent’s regulations.
He identified the issue as being whether the charge of being absent without permission was the appropriate charge regard being had to Clause 9 (b) of 1st respondent’s Regulations, and further pointed out that parties having agreed on facts being common cause, there would be no need to lead oral evidence.
7. Conciliation and arbitration processes are independent of each other, and in our view, by referring to the facts it did not mean that the learned Arbitrator was importing what transpired at conciliation into the arbitration process. Applicants were represented by a trade union official, and in our opinion, if he felt that the facts were not common cause, he ought to have objected and shown what facts were disputable. What the learned Arbitrator did was to narrow down issues, which was quite normal.
8. Applicant’s Counsel argued that the learned Arbitrator decided the case prematurely as he never asked the applicants why they were absent. Clause 10 (1) (a) of the Labour Code (Codes of Good Practice) Notice, 2003 provides very useful guidelines in the determination of whether a dismissal was fair or not. It provides, inter alia, that:
Any person who is determining whether a dismissal for misconduct is unfair should consider:
9. The question arises:- Was the question whether the applicants contravened 1st respondent’s rule or standard relevant in the case that was before the DDPR? Looking at the record, it is clear that the bone of contention before the DDPR was that 1st respondent’s charge was defective and not whether or not applicants were absent and/or had a reasonable excuse. This question would naturally call for evidence, but it happened not to have been the issue that had been brought for the DDPR’s determination.
10. Courts normally have to make a finding concerning the existence or non-existence of certain facts before pronouncing on the rights, duties and liabilities of the parties engaged in a dispute - see Schwikkard & 2 Others in Principles of Evidence Juta & Co., 1997. This, however, depends on whether there are any facts which are in dispute. There is no need to lead evidence where parties agree on the facts. At the centre of the dispute before the DDPR was whether it was appropriate for the employer to have charged the applicants for “absenteeism without permission” when its rules provided for “absenteeism without a valid excuse.” This is a legal enquiry. The issue of whether the facts were common cause is essentially one of fact, and would surely necessitate proof. It, however, appears not to have been in issue. As far as we are concerned, the learned Arbitrator properly captured the issue that was at hand which, as pointed out above, was to determine whether it was proper for the employer to have phrased the charge as “absenteeism without permission” as opposed to “absenteeism without a valid excuse.”
11. Applicants’ union representative raised no objection to the learned Arbitrator’s statement that the facts were common cause. Even before this Court, Applicants’ Counsel did not say what factors were not common cause, he just pointed out that the learned Arbitrator ought to have allowed parties to lead evidence and not to have concluded mero motu that the facts were common cause. Besides there having been no objection to the learned Arbitrator’s summary, Counsel also failed to show which facts were disputable and the nature of the evidence applicants intended leading.
12. The referral before the DDPR was only directed at challenging a charge the applicants considered to have been defective. It should also be borne in mind that the DDPR was not the first port of call. Its role was to examine whether the disciplinary process had been fair in establishing applicants’ guilt for the alleged misconduct. According to the record (not paginated) applicants complained about the nature of the charge not about whether they were absent from duty without authority or not. Throughout the record, they were complaining about the charge as evidenced by their union representative’s submissions. He indicated in clear terms that:-
“[our] issue is the charge that they were preferred with. They were charged with absenteeism without permission and they were said to have contravened regulation 9 (b) of the respondent’s regulations but there is no offence of being absent without permission per the respondent’s rules.”
13. He had this to say in his closing remarks at the DDPR:- “let me wrap up by saying the charge was wrong…” He also said in the record that applicants were misled by the charge and that had they been “charged with absenteeism without a reasonable excuse then we would be in a position to give him evidence, now he charged us incorrectly and by so doing he denied us the opportunity to furnish such evidence.” This underscores the fact that what the applicants had brought before the DDPR was the charge levelled against them and not the merits. The learned Arbitrator was enjoined to address his mind to the charge and nothing else. As far as we are concerned, not much turned on the phrase “absenteeism without permission” in relation to “absenteeism without a valid excuse” in light of the issue for determination before the DDPR, which was the question of the charge. As far as we are concerned, the learned Arbitrator applied his mind to the issue that was before him and properly motivated his conclusion. Applicants’ case is accordingly found to have been without merit as the learned Arbitrator committed no irregularity.
14. The learned Arbitrator dismissed applicants’ claim for unfair dismissal and made an order of costs in the amount of Five Hundred Maloti (M500.00) against each one of them for having brought a frivolous claim. Applicants’ Counsel objected to this contending that it was improper for him to have awarded costs on a punitive scale without having given them a hearing.
15. Counsel relied for his submission on the Court of Appeal’s decision in `Mankhasi Mahao v Lesotho Electricity Corporation and 4 Others (C of A (CIV) NO. 8/09). Indeed, the Court of Appeal held that since an order of punitive costs (costs de bonis propriis) is a very drastic remedy it should not be resorted to without affording the person concerned an opportunity of being heard on the issue in accordance with the fundamental precepts of fairness, particularly the audi alteram partem rule. This is the common law position. However, in respect of DDPR matters there has been a statutory intervention in the form of Section 228E of the Labour Code (Amendment) Act, 2000. The Section empowers the DDPR to award costs where it finds a referral to have been frivolous or vexatious. The Act does not make a distinction between ordinary and/or punitive costs. It is our considered opinion that in awarding costs against the applicants, the learned Arbitrator properly exercised a discretion conferred on him by statute. The Court therefore finds nothing irregular with such an order.
16. On the above analysis, we come to the following conclusion that:-
THUS DONE AND DATED AT MASERU THIS 12th DAY OF DECEMBER, 2014.
PRESIDENT OF THE LABOUR COURT (a.i)
L. MATELA I CONCUR
L. RAMASHAMOLE I CONCUR
FOR THE APPLICANTS: ADV., M.S. RASEKOAI ASSISTED BY MR BOHLOKO
FOR THE 1st RESPONDENT: ADV., M. KHUMALO ASSISTED BY ADV., MAKARA
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law