CIV\APN\12\92

IN THE
HIGH COURT OF LESOTHO

In matter
between:

SOPHIA
NTEBALENG RATHOBELI Applicant

and

FAIRWAYS
LESOTHO LIMITED Respondent

JUDGMENT

Delivered
by the Honourable Mr, Justice J.L. Kheola on the 3rd day of August.
1993.

This is
an application for an order in the following terms:-

1. Directing
   Respondent to pay Applicant severance pay pursuant to Conditions and
   Wages of Employment Order 1978;

   
   

2. Directing
   Respondent to pay Applicant emoluments withheld during the period of
   suspension;

   
   

3. Directing
   Respondent to pay Applicant cash in lieu of one month's notice;

   
   

4. Directing
   Respondent to pay back Applicant's

   
   

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pension and other policies' contributions;

5. Directing
   Respondent to pay Applicant for over-time she was twice each year or
   service to work since 1980 to her date of dismissal;

   
   

5. Directing
   Respondent to pay Applicant a sum of M2,000.00 (two thousand maloti)
   as compensation for her stolen property.

   
   

In her
founding affidavit the applicant avers that in September, 1977 she
was employed by the respondent as a clerk and worked for
the
respondent till on or about the 12th November, 1991 when she was
dismissed. At the time of her dismissal she was holding the
position
of a Manager and earning a salary of M812.00 gross.

The
reason for the applicant's dismissal is stated in the letter of
dismissal as being the big shortage at Tsita's Nek where the

applicant was the manageress.

The
applicant avers that she was not paid any severance pay at the time
of her dismissal as she had worked for the respondent for
a period
exceeding four years. She was not paid her salary which was withheld
during the period of her suspension from the

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31st
October, 1991 to the 12th November, 1991 when she was dismissed. She
was not paid cash in lieu of notice even though she was
entitled to
one month's notice. She was not paid back the pension and other
policies' contributions which she made while she was
employed by the
respondent which were compulsory.

The
applicant further avers that from her leave pay a sum was subtracted
in relation to ninety-nine days sick leave even though
respondent was
aware that she was involved in a car accident whilst en route to work
which has since disabled her permanently.
She was not paid for
overtime even though she was required to work overtime twice each
year of service since 1980 to the date of
her dismissal.

She avers
that she was allocated a quarter by the respondent at Tsita's Nek in
the Mafeteng district where she worked as a Manageress
till her
dismissal. Sometime in May, 1990 her said quarter was broken into and
a number of items of her property was stolen. The
respondent asked
her to submit an account in respect of the lost property as it was
going to pay for the loss. She submitted the
account in the sum of
M2,000.00 which was found by the respondent to be fair and
reasonable. However to-date the respondent has
not paid her this sum
to which she was entitled.

The
respondent's answering affidavit was made by a certain

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Mr. T.G.
van Dyk who is the Area Manager of the respondent. He avers that
during April, 1991 he visited Tsita's Nek store for the
purpose of
inspection. He found a shortage of stock amounting to M20,101.00. He
questioned the applicant about the shortage and
she was unable to
give a satisfactory explanation. The applicant was dismissed on the
12th November, 1991. The deponent alleges
that the applicant was paid
her terminal benefits as illustrated in Annexure "D" to the
answering affidavit.

The
affidavits of Ms. Eatere Motanyane, Ms. Florett 'Masepolo Makhale and
Mr. David Makhetha show that the applicant did not manage
the store
well. She took away goods from the storeroom without any evidence of
payment; she instructed the cashier not to reflect
the extraction of
such cash in the cash register; she took an amount of M600.00 from a
client for the sale of corrugated iron sheets
which were never
delivered.

In her
replying affidavit the applicant denies all these allegations made
against her. She denies that at the time she was the Manageress
of
Tsita's Nek there was any shortage of stock. She avers that at the
time the inspection was made she was on sick leave following
her
involvement in a car accident. She was on sick leave from the 12th
February, 1991 till the 1st July, 1991.

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The
respondent has filed a counter-claim together with the answering
affidavit. The counter-claim is accompanied by a declaration
setting
out full particulars of the claim. I agree with Mr. Malebanye,
Counsel for the applicant, that this is an irregular process
inasmuch
as in motion proceedings there can be no counter-claim. The
respondent ought to have filed a counter-application. The

counter-claim is struck out as an irregular process.

Regarding
the answering affidavit of the respondent it will be seen that it has
not challenged or denied any of the allegations
raised by the
applicant. The proper procedure is that the respondent must answer
the founding affidavit paragraph by paragraph.
The respondent has not
done so instead it has merely alleged that it has a counter-claim
against the applicant arising from the
shortage which was discovered
at the store which was under the management of the applicant. That
allegation does not answer the
applicant's case.

The
applicant alleges that she was not paid severance pay pursuant to
Wages and Conditions of Employment Order 1978 (The Order),
Section 10
(1) (a) and (b) and 10 (2) reads as follows:

1. An
   employee who has completed more than four continuous service with
   the same employer,

   
   

1. whose
   employment is being

   
   

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terminated by his employer otherwise than by summary dismissal in the
circumstances set out in section 15(3) of the Employment
Act 1967:

2. who
   resigns from employment,

   
   

shall be
entitled to receive, upon such termination or resignation as the case
may be, redundancy, severance or long service payment,
equivalent to
two weeks wages for each completed year of continuous service with
the same employer.

2. Where
   the employee received a lump sum payment from a contributory scheme,
   to which both the employer and employee contributed
   over and above
   his own contributions, that amount will count towards and be offset
   against the redundancy, severance or long
   service payment referred
   under paragraph 10(1)."

   
   

It seems
to me that an employee who is summarily dismissed is not entitled to
any severance payment. The letter of dismissal of
the applicant
clearly indicates that this was a summary dismissal. It reads as
follows:

"I refer to our discussions with Mr. Matlala of the Labour
Department. This (sic) discussions is (sic) taken to determinate
you
as from to-day, the reason for this is the big shortage at Tsita's
Nek as discussed with you.

Outstanding leave will be paid to you, but we will deduct all
outstanding accounts."

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(My underlining)

The
letter was written on the 12th November, 1991 and the dismissal was
to operate with effect from the same day. The question of
whether
this was a summary dismissal or not was never addressed by the
applicant in her founding affidavit. Nor did her counsel
make any
submissions regarding that issue.

The
applicant is applying that the respondent be directed to pay cash
lieu of one month's notice. This prayer seems to suggest that
the
applicant assumed that the dismissal ought to have been on notice. No
attempt was made to show the Court that the dismissal
was unlawful or
that it ought to have been on one month's notice.

The
depositions by the respondent and its witnesses indicate that the
applicant was guilty of misconduct in terms of section 15(3)
(a) of
the Employment Act 1967 in that she caused the shortage by stealing
the stock or giving the stock to other people who never
paid for it.
In other words the dismissal was for a lawful cause.

I shall
make no finding on that issue. However for the purposes of this case
I shall assume that the dismissal was a summary one.
Whether it was
justified or not I wish not to

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decide
because no submissions were made on that aspect of the case.

I
therefore come to the conclusion that the applicant was not entitled
to severance payment as well as the cash in lieu of one month's

notice.

The
applicant prays that the respondent be directed to pay applicant
emoluments withheld during the period of suspension. In its
answering
affidavit the respondent has not challenged this particular claim.
Having been dismissed on the 12th November, 1991 the
applicant is
entitled to her salary from the 31st October, 1991 when she was
suspended.

The
applicant prays that the respondent be directed to pay back
applicant's pension and other policies' contributions. The applicant

has not stated the exact amounts of deductions that were made from
her salary. The respondent has not denied that the applicant
made
such contributions. I find it very strange and unsatisfactory that
the respondent is treating its managers of its stores like
casual
labourers. There is no written contract between the applicant and the
respondent. In a dispute like the present one the
employee has no
written contract to prove the terms and conditions of her employment.
This practice of the respondent towards its
senior employees is
unsatisfactory. Does

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it mean
that Mr. T. G. Van Dyk, the Group Manager of the respondent who made
the answering affidavit on behalf of the respondent
has no written
contract between himself and the respondent? I do not think so.

I am of
the view that the applicant is entitled to the refund of all the
money she contributed towards her pension and other policies.
Section
16 of the Employment Act 1967 provides that the termination of any
contract under the provisions of this Part shall be
without prejudice
to any accrued rights or labilities of either party under the said
contract at the date of termination. I regard
those contributions
made by the applicant as being her accrued rights irrespective of
whether she is dismissed summarily or on
notice.

As far as
payment for over-time work done by the applicant since 1980 to the
date of her dismissal there is no dispute raised by
the respondent.
In terms of section 5 of the Order the applicant is entitled to such
payment.

The last
prayer regards the payment of M2,000 as compensation for the
applicant's stolen goods. The respondent has not denied that
there
was such an agreement between it and the applicant. The respondent is
under an obligation to make Chat payment of M2,000.

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In terms
of section 8(2) of the Order the applicant is entitled to sick leave
on full pay for up to twelve days and thereafter to
sick leave on
half pay for up to twenty-four days in each period of twelve months'
continuous service. I notice that according
to Annexure "SNR2"
to the founding affidavit the applicant was not paid anything for
sick leave. That was wrong because
sick leave is an accrued right.

In the
result the application is granted in terms of prayers (b), (d), (e)
and (f). The respondent must also pay sick leave in terms
of section
8 (2) of the Order. There will be no order as to costs because the
applicant has not applied for costs.

J.L.
KHEOLA

JUDGE

3rd
August, 1993.

For
Applicant - Mr. Malebanye

For
Respondent - Mr. Mofolo.