CIV/T/269/87

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

LESOTHO
PLANNED PARENTHOOD ASSOCIATION Plaintiff

AND

NTHABISENG
MOSHABESHA Respondent

Before
the Honourable Chief Justice Mr. Justice B. P. Cullinan on the 5th
day of February, 1992

For the
Plaintiff : Mr. T. Monaphathi

For the
Respondent : Mr. N. Mphalane

RULING IN
LIMINE

The
defendant was employed by the plaintiff Association (the Association)
by contract dated 12th September 1985, as a Co-

2

ordinator.
She commenced work however on let October, 1985.

Attached
to the contract is a document entitled "Conditions of Service".
The defendant also received a letter of appointment
of 4th September
1985, so that in reality all three documents constitute the written
contract.

The
contract stipulated (Clause 1) that the defendant would be paid a
salary on the scale M9,372 - M10,542 p.a., commencing at M9,372
p.a..
Thereafter the defendant would enjoy an annual increment, subject
that is, "to the conduct and efficiency of the employee
and
availability of funds".

The
contract also stipulated that she would be granted annual leave of 21
working days, excluding Saturdays, Sundays and Public
Holidays. The
parties agree that such leave, in terms of its value was the
equivalent of a month's salary. The defendant joined
a compulsory
contributory Pension Scheme, under which she was obliged, from the
commencement of her employment, to contribute 5%
of her salary per
month to the Scheme.

Two
clauses in the contract are particularly important. They read:

"2 . Probation Period

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An employee will serve a probationary period of six (6) months, at
the end of which period his/her appointment will be confirmed
subject
to the Association's satisfaction with his/her performance".

"12. Termination of Service

An employee wishing to terminate his/her services with the
Association will be required to give three (3) calendar months notice

or pay cash equivalent to three months salary in lieu of notice.

Likewise the Association is required to act in like manner".

The
defendant's probationary period of 6 months terminated on 31st March
1986. She was not informed after that date that she had
been
confirmed in her appointment.

On 26th
November 1986, the defendant gave notice of resignation with effect
from Sunday 30th November, 1986, terminating her actual
service on
Friday 28th November, apparently waiving her claim to a month's
salary in lieu of 21½ days' leave leave earned,
and treating
that waiver of one month's salary as a payment of one month's salary
in lieu of notice.

The
Association claims payment of three months salary in lieu of notice.
The defendant pleads that as the Association "never
confirmed or
cancelled Defendant'a employment, but left her in limbo" until
she terminated her service, her employment from
31st March 1986
onwards was not governed by the contract, but by the

4

Employment Act 1967,

"in as much as there was no provision in her service contract
for an intermediary situation of employment between her probationary

period and period of her confirmation as full employee of plaintiff".

Without
any pleading in the matter, Mr. Mphalane submits that the defendant
was entitled to give one month's notice, I presume that
that is a
reference to section 13 (1) (a) of the Employment Act which reads,

13. (1) Every contract, not being a contract for one period of fixed
duration nor a contract to perform some specific work or undertake
a
journey, without reference to time, shall be deemed in a case where -

1. the
   contract is to pay wages at a monthly rate, or by reference to any
   other fixed period not expressly covered by a provision
   of this
   subsection, to be a contract from month to month determinable by
   either party at any time on not less than one month's
   notice;"

   
   

I cannot
say that the contract is one "to pay wages at a monthly rate".
Although the contract in two clauses (clauses
11 and 12) indicate
that salary will be paid monthly, no rate as such is stipulated. The
rate stipulated is an annual rate i.e.
M9,372 p. a. . Nonetheless the
particular provision refers to "any other

5

fixed
period not expressly covered by a provision of this subsection ....."
. The period of one year is not expressly covered
by a provision of
section 13(1), so that, under that sub-section, the contract would be
deemed to be " a contract from month
to month determinable by
either party at any time on not less than one month's notice".
Thereafter section 14 (4) provides
for payment of one month's salary
and other remuneration in lieu of notice.

Mr.
Monaphathi submits that the parties may stipulate a longer period of
notice in a contract. That is so. Section 13 (2) provides
that:

"(2) Nothing in this section shall be taken to prevent either
party -

1. from
   entering into a contract by which he agrees to give a longer period
   of notice of termination than is provided by this section;"

   
   

Thereafter
Mr. Monaphathi submits that it makes no difference whether or not the
defendant was confirmed in her employment or otherwise:
she was
obliged at all times to give three months' notice.

I observe
that under clause 12 both parties were obliged to give equal notice.
I doubt very much whether, on 31st March, 1986, the
Association would
have been obliged to give the defendant three months' notice of
termination, where the letter's service under
the

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probationary
period had proved to be unsatisfactory. The whole purpose of a period
of probation is to enable the employer to assess
the employee's
capability during that period and, if necessary, to terminate the
employment forthwith upon completion of the probationary
period. If
for example the Association finally made up its mind in the matter,
and decided just before the end of the 6 months
period that the
defendant's service was not satisfactory, it would mean, if Mr.
Monapathi is correct, that the Association would
then have to serve
three months notice of termination, thus in effect enlarging the
period of probation from six months to nine
months, contrary to the
clear intention under the contract. The learned author Stephen D.
Anderman in his book The Law of Unfair
Dismissal 2 Ed (1985) at p
190, in dealing with the necessity for an employer to give an
employee due warning concerning his capability
to do the work
involved, observes that "there are . . . cases where an employee
may have received an effective substitute
for a warning e.g. a
probationary period".

As to
whether or not the defendant need have given three months' notice of
termination while on probation, I see no need to decide.
Clause 2
provided that at the end of the six months' probation, the
appointment "will be confirmed subject to the Association's

satisfaction with his/her performance". There is no provision
there for any enlargement of the period of probation and I have

little doubt that the defendant would not have agreed to

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such
uncertainty. Neither is there any provision for a state of "limbo",
as described by the defendant. The manner of
communication of
confirmation is not stipulated. It could therefore be by way of
writing or verbally. In the absence of either
method, the question
arises as to whether confirmation was implied.

As I see
it, the Association was obliged to confirm either before the
termination of the term of probation (indeed it could abbreviate
the
probationary period), or as soon as reasonably possible after the
termination thereof, depending on the particular date of
termination,
the incidence of non-working days, public holidays etc. Suffice it to
say that a delay of some days might be considered
reasonable, but
certainly not, as the defendant apparently suggests, a delay of over
seven months as in this case. The contract
made no provision whatever
for such inordinate delay. It is the Court's function to construe a
contract so as not to be seen to
destroy the bargains of men. In the
present case, where the employer failed to expressly confirm the
employment, the contract must
be construed against the employer, and
not, I stress, against the employee.

The
problem can be approached from another viewpoint. Let us suppose that
the Association had terminated the defendant's service
summarily
without notice, say, on 1st July 1986, on the basis that

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her
service during the probationary period had not proved satisfactory.
Would not the defendant have then contended that the time
for
confirmation on 31st March or 1st April had long since passed, and
the Association must then be taken to have confirmed her
in her
employment and it could thereafter only summarily terminate for
misconduct, or otherwise be obliged to give three months'
notice? I
have little doubt that in such circumstances the said contention
would be right in law.

After
31st March 1986 the defendant continued in employment. She continued
to draw the same salary. She was not given an annual
salary increment
on 1st October 1986, but as is evident from clause 1 of the contract,
that position was not necessarily uncontractual.
She continued to
earn leave. She continued to contribute to the pension scheme. In
brief, the contract was fulfilled by both parties
in every term
thereof. In all the circumstances therefore the plaintiff must be
taken as having impliedly confirmed the defendant
in her employment,
and indeed the defendant must be taken as having impliedly accepted
that she was thereafter in permanent employment.
In all the
circumstances, therefore, I hold that the defendant was obliged to
fulfil the contract in every way, that is, she was
obliged to give
three calendar months' notice of termination thereof, or three
months' salary in lieu of notice. From the latter
amount, of course,
would be deducted the month's salary in lieu of leave, and also the
relevant contributions to the

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pension
scheme.

Delivered
at Maseru this 5th day of February 1992.

B. P.
CULLINAN

CHIEF
JUSTICE