CIV/A/7/83

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

THE
STANDARD BANK , P.L.C. ......... Appellant

and

LESOTHO
UNION OF BANK EMPLOYEES..... Respondent

(LUBE)

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 17th day of August, 1984.

This is
an appeal against the finding of the Unfair Labour Practices Tribunal
that, in terminating the services of one Bahlakoana
Moliko, an
employee of the Appellant bank and a member of the Respondent union,
the appellant was guilty of unfair labour practice.
The appeal was
also against the subsequent order framed in the following terms :

1. "Respondent
   must restore the position of

   
   

Mr. Moliko i.e. Mr. Moliko must be reins­tated to the position he
held before he was dismissed. It was made clear at the begin­ning

of this proceedings in July last year that Mr. Moliko was still
unemployed and awaiting the outcome of this case. His re­instatement

is not going to force him to leave another job.

2. Compensation
   : Respondent must pay Mr. Moliko the sun of M14,640-32 being loss of
   earning from 1st June,1982 to 14th April, 1983.

   
   

Respondent
must pay costs on the High Court scale."

The
ground on which the appeal is based is that there was no evidence to
support a finding of unfair labour practice and the subsequent
order
was, therefore, unjustified.

Before
the commencement of the hearing of this appeal Mr. Harley who
appeared for the appellant made an application that a record
of
proceedings compiled from the notes made by a

2

certain
R.D. Bedingham who was a witness in the court a quo should be
accepted and used as the official record in preference to
the record
compiled from the notes made by the Chairman of the Unfair Labour
Practices Tribunal. The application was opposed by
Mr. Sello, counsel
for the Respondent.

I am not
aware of any provision of the Rules which authorises that kind of
procedure and I accordingly refused the application.

It was
common cause that on 18th June, 1982, the respondent union addressed
a letter to the Registrar of Unfair Labour Practices
Tribunal in the
following words :

"In terms of Section 61 of the Trade Unions and Trade Disputes
Law No. 11 of the 1964, we hereby lodge a complaint against
the
Standard Bank Limited of Lesotho. We charge that the said bank is
guilty of an unfair labour practice in terminating the services
of
our member, one Bahlakoana Moliko and hereby call upon you to summon
the Unfair Labour Practices Tribunal to hear our case.

We annex
hereunto an affidavit by the said Bahlakoana Moliko."

The
appellant bank intimated its intention to oppose the matter and one
Mr. Nigel Southey, the Manager of the bank, duly filed the
opposing
affidavit. The Respondent union in turn filed a replying affidavit
again deposed to by Bahlakoana Moliko.

When the
case eventually came before the Unfair Labour Practices Tribunal for
hearing either of the litigants was afforded the opportunity
to lead
viva voce evidence.

In both
its affidavits and verbal evidence, the case made out by the
respondent union and not really disputed by the Appellant bank
was,
in a nut shell, that on 13th October, 1971, Moliko had concluded an
employment contract with the Appellant. The terms of that
contract
were written in a document styled "Articles of Agreement"

3

duly
signed by the contracting parties.

When he
joined the bank services, Moliko also became an active member of the
Respondent union.

His
efficiency in the performance of his duties earned Moliko a series of
rapid promotions culminating in his appointment to the
position of
Assistant Manager at the Maseru branch of the bank in September,
1980. On 31st May, 1982, Moliko's services with the
bank were,
however, terminated.

According
to the Respondent union, the management of the bank had never
complained that Moliko was incompetent in the performance
of his bank
responsibilities. Moliko's problems with the bank only started in
February, 1982, against the following background:
The Respondent
union called a general strike for all its members from 22nd to 23rd
February, 1982. Another strike was called from
23rd to 26th March,
1982. On 4th April, 1982, the Respondent Union banned all overtime
work for its members. Moliko was one of
the union members who
participated in the strikes and the ban on overtime work.

Following
Moliko's participation an the strikes and the ban on overtime work,
Mr. R.D. Bedingham, the Chief Manager of the bank,
called him into
his office and asked him whether he was on the side of the Union or
the Management. Moliko told him that the Management
had already
indicated that he was on the side of the Union because when they
wrote letters to the members of the union threatening
to expel them
if they participated in the strikes, the first letter was his. After
that meeting with him, Bedingham began writing
to Moliko letters
which showed his disapproval of the latter's having participated in
the strikes and the ban on overtime work
called by the Respondent
Union.

The Union
contended, therefore, that Moliko could not have been dismissed as a
result of inefficiency in the application to his
bank duties. On the
contrary, the dismissal was an act of victimization for his
participation

4

in the
activities of the Union. The dismissal was for that reason an act of
unfair labour practice as defined in Section 61(2),
Part XI of Trade
Unions and Trade Disputes Law No. 11 of 1964,

In
support of its contention that Moliko's dismissal was an act of
victimization for participation in the acti­vities of the
Union
and, therefore, unfair labour practice, the Respondent union called,
apart from Moliko himself, Francina Mohasoa, Potso Nkuebe
and Linkeng
Mapetla who all testified to have been shocked by the dismissal of
Moliko whom they regarded as very efficient in the
per­formance
of his bank duties. They, therefore, saw his dismissal as an act of
victimization

In its
affidavit and verbal evidence, the appellant bank denied the
allegation that prior to February, 1982, the management had
never
complained about Moliko's efficient application to his bank duties
and pointed out that during 1981, Moliko was pursuing
part time
Degree studies with the National University of Lesotho when it was
noticed that on 2 or 3 afternoons a week he was leaving
the office
early, and while other people (including the Manager) were working
overtime, in order to attend classes for his part
time studies. That
obviously interferred with Moliko's efficient application to his bank
responsibilities in the sense that while
there was work to be
attended to and other people were pulling their weight to cope up, he
was giving preference to his extra-mural
studies. The management was
unhappy with that state of affairs and in December 1981 had to advise
Moliko either to make alternative
arrangements that would fit in with
his bank responsibilities or else cancel his course of studies where
they conflicted with his
responsibilities at the bank. He opted for
the second alternative.

The
Respondent could not gainsay Appellant's evidence that in 1981 the
management complained that Moliko's private studies were
adversely
interfering with his bank duties and had to be advised against it.
That being so,

5

I fail to
apprehend how the allegation that prior to February, 1982 the
Management had never complained about Moliko's application
to his
bank responsibilities could be accepted as the truth. The allegation
was clearly contradictory to undisputed evidence and
for that reason
could not be sustained.

Although
he conceded to have called Moliko into his office Bedingham denied
that he had asked him whether he was on the side of
the Union or the
Management. All he did was to tell Moliko that in order to complete
his duties satisfactorily he was required
to work a certain amount of
overtime.

It would
appear that the Tribunal preferred the version of Moliko to that of
Bedingham on this issue. As Bedingham was alone with
Moliko, it seems
to me it was the word of one against the other. It was perhaps, the
question of credibility for which the Tribunal
before which the two
gentlemen appeared and testified was the best judge. One should,
therefore, be rather reluctant to be too
quick to interfer with the
finding of the Tribunal

The
evidence that Moliko's problems with the Appellant bank only started
in February, 1982 was, like­wise, denied by the Appellant
bank in
whose evidence although he had admittedly cancelled his course of
studies the advice given in December 1981 regarding his
private
studies was apparently not well received by Moliko, for on 16th
January, 1982, he addressed to the manager, a letter annexure
A1
which clearly demonstrated his change of attitude towards the
management.

According
to the appellant, the letter came out of the blue in as much as it
was not a reply to any letter previously directed to
him by the
manager. It was referring to letters which the manager had addressed
to some members of the staff and issues previously
discussed between
the manager and Moliko himself.

It may be
mentioned at this juncture that the Tribunal saw no change of
attitude, on the part of Moliko,

6

in this
letter. I have, however, also read the letter. It is unnecessary to
go into all its details, surfice it to say it is clearly
critical of
the manager and its tone somewhat lacking in decorum if not
sarcastic. It starts off in this fashion:

"Since letter writing has turned out to be a normal practice for
our office, I think I may as well follow soot and write a
letter.

I must point out, this, according to me is a very unfriendly way of
management and a letter should be written ONLY when ABSOLUTELY

NECESSARY.

One doesn't leave a member of staff to make a mistake only so that
one can later write him/her a letter. You suggested on Saturday
9th
January, 1982 that we let Savings Bank check clerks to leave office
so that you could later write them letters.

The system is time consuming and very laborious. I feel our only
typist is overloaded with unnecessary or uncalled for letters
and
some very important returns are being given second preference to the
manager's letters (Form 140G .31.12.1981).

I have previously verbally mentioned to you that letters on your desk
could be easily cut off 50% by :

1. delegation
   and

   
   

2. verbal
   discussion with responsible officers concerned.............."

   
   

In my
view, one can make one's point without being sarcastic to one's
superiors. I have serious doubts if any manager in any establishment

can reasonably be expected to buy the style in which the letter has
been written unless, of course, he has the patience of the
Biblical
Jobo which is very rare, indeed.

It was
not disputed that as the Assistant Manager at the Maseru branch of
the Bank, Moliko's responsibilities included inter alia,
co-operation
with the manager to ensure the smooth running of the branch and to
that end all the departments within the branch
fell under their
supervision, be it directly or indirectly. However, the

7

letter -
Annexure A1 - was followed by a stream of other letters, e.g. A2,
F1-F5, F8-F14, written by the manager, the Chief Manager
and Moliko
himself. The majority of the letters pointed to but one thing,
namely, that Moliko's application to his bank responsibilities
was
found, by the management, to be unsatisfactory in that he was neither
properly carrying out his supervisory duties nor was
he efficiently
co-operating with the management in that regard. This Respondent
disputed and the Tribunal was inclined to find
against the Applicant
on this issue.

It is
significant to remember, however, that it was the Respondent Union's
evidence that following its call for general strikes
in February and
March, 1982, and the ban on overtime work in April of that year,
Moliko admittedly participated in all the strikes
and the ban on
overtime work. The question that immediately arises is how Moliko
could have efficiently carried out his supervisory
responsibilities
and rendered the neces­sary co-operation to the management while
at the same time taking part in the Unions
strikes and the ban on
overtime work. It seems to me that the two could not possibly go
together. The Appellant bank was, in all
probabilities, testifying to
the truth when it said there was a deterioration in Moliko's
application to his supervisory responsibilities
and co-operation with
the management. That being so, it could hardly be argued with any
seriousness that Moliko did not infringe
the conditions of his
contract particularly clause 3 of the "Articles of Agreement"
which provides:

"The employee shall give his unremitting attention to the duties
of any office in the service of the bank to which he has
been or may
hereafter be, appointed, and to the general interest of the bank; and
shall not become engaged, directly or indirectly
in any other
business without the express sanction in writing of the general
manage­ment previously obtained nor in any occu­pation,

whether of profit or otherwise, which may in the opinion of the
general management preclude him from carrying out his duties with

efficiency, or which may be detrimental to the interests of the
bank."

8

The
Appellant bank contended that the decision to terminate Moliko's
services was taken in accordance with the provisions of Clause
9 of
the "Articles of Agreement" for his lack of efficient
application to his bank respon­sibilities and had nothing
to do
with his being an active member of the Respondent Union.

In
support of the contention that his dismissal had nothing to do with
Moliko's active membership of the Respondent Union, the Appellant

adduced the evidence of one Samuel Rahlao, the Bank Manager at the
Maputsoe branch of the Appellant Bank, who testified that he
was one
time President and still an active member of the Respondent union.
That had not resulted in his dismissal. Indeed, the
evidence of
Mohasoa, Nkuebe and Mapetla was that they, themselves were at the
relevant time active members of the Respondent union.
Their contracts
were, however not terminated for that reason.

Having
decided that Moliko's participation in the strikes and the ban on
overtime work called by the Respondent union resulted in
the
deterioration of his application to his bank responsibilities, the
real deciding question in this matter was whether or not
his
participation therein was lawful. If the answer is in the affirmative
then the Appellant bank could not be entitled to dismiss
him. If,
however, the answer is in the negative, obviouslly the appellant bank
could lawfully dismiss him.

It is
pertinent to note that in terms of the Legal Notice No. 21 of 1982
published in Gazette No. 11 of 25th March, 1982, the Essential.

Services Arbitration Act No. 34 of 1975 was amended by the insertion
of the Banking Business Services to the schedule thereof,
so that
when on 4th April, 1982 the Respondent union called the ban on
overtime work in which Moliko admittedly participated the
bank fell
within the ambit of the essential services and the legality or not of
the call for the ban on overtime work fell to be
governed by the
Essential Services Arbitration Act, supra, of which Section 17(1)
specifically

9

provides
s

"17(1) no person shall declare, instigate, counsel, procure or
abet a lock-out or strike in any essential service, unless
a trade
dispute exists and has been reported to the Labour Commissioner in
accordance with section 6(1) and twenty one days or,
if a further
period has been allowed by the minister under subsection 5 of the
section, twenty one days and such further period
have elapsed since
the date of such report and the dispute has not been, during that
time, settled or been referred to the Tribunal
by the Minister under
that section."

From the
letter of 6th May, 1982 which the Labour Commissioner addressed to
the Chief manager of the Appellant bank, with copy to
the Secretary
of the Respondent Union, it is clear that the question whether or not
a trade dispute existed, as yet, between the
Appellant bank and the
Respondent union, entitling the latter to call the strikes or the ban
on overtime work in which Moliko admittedly
participated was referred
to the Labour Commissioner whose decision was in the negative. That
letter reads, in part :

"Dear
Sir,

re: Banning of overtime : Lesotho Union of Bank Employees.

We refer to your letters of 5th, 22nd 28th ultimo and 4th instant on
the above subject.

As intimated in our letter to the Union (dated 29th April, 1982),
which was copied to you, in the absence of any private agreement

between yourself and your employees doing away with overtime, the
Employment Act empowers you to require your employees to work

overtime within the legally prescribed limits. The relevant sections
of the Act also provide you with remedies which you might
have
recourse to in the event of disobediences to your lawful orders,
generally.

Regarding the question of whether the action of the union constitutes
a strike in terms of the provisions of the Essential Services

Arbitration Act, 1975, we consider that their conduct does not fall
within the definition of a "strike" because:

1. it
   has not been demonstrated to be

   
   

"in consequence of a trade dispute," and

2. it
   has not been shown that the employees

   
   

10

have the requisite intention(s)......"

(my underlinings).

Now, the
decision of the Labour Commissioner whether or not a trade dispute
exists in an essential ser­vice is conclusive in
terms of the
Essential Services Arbitration Act, 1975 of which section 6(1)
provides:

"6(1) If any trade dispute in an essential service exists or is
apprehended, that dispute if not otherwise determined may
be reported
in writing to the Labour Commissioner by or on behalf of either party
to the dispute, and the decision of the Labour
Commissioner as to
whether or not a dispute is or is not a trade dispute in an essential
service and whether or not a dispute has
been so reported to him and
as to the time at which a dispute has been so reported shall be
conclusive for all purposes."

(my underlinings)

Once the
Labour Commissioner had decided, therefore, that no trade dispute
existed between the Appellant bank and the Respondent
union, the
latter could not lawfully call upon its members to go on strike or
ban overtime work for such move would be illegal
under the provisions
of section 17(1) of the Essential Services Arbitration Act, supra.

However,
as we have seen, notwithstanding the decision of the Labour
Commissioner that no trade dispute existed between the Appellant
bank
and the Respondent union, the latter continued with the ban on
overtime work called for its members on 4th April, 1982. That
clearly
amounted to an illegal strike in which Moliko's participation was
prohibited in terras of section 16(1) of the Essential
Services
Arbitration Act, supra. The section reads, in part :

"16(1) An employer in any essential service shall not take part
in a lock-out and an employee in an essential service shall
not take
part in a strike, unless a trade dispute exists .."

It
follows, therefore, that the question whether or not Moliko's
participation in the ban on overtime work was lawful must be answered

in the negative. That granted, I take the view that the appellant was
entitled to dismiss

11

Moliko,
not only in terms of the provisions of Section 15(3)(e) of the
Employment Act 1967 but also Clause 9 of the "Articles
of
Agreement". The dismissal could not, in my opinion, justifiably
be regarded as an act of victimization or unfair labour
practice.

In my
judgment there is, therefore, substance in the ground of appeal that
there was no evidence to support a finding of unfair
labour practice.
It necessarily follows that the subsequent order made by the Tribunal
falls away.

In the
result, the appeal is allowed with costs.

JUDGE.

10th
August, 1984.

For
Appellant : Mr. Beckly.

For
Respondent: Mr. Sello.