C.of A.
(CIV) No.14 of 1984

IN THE
LESOTHO COURT OF APPEAL

In the
Appeal of :

LESOTHO
UNION OF BANK EMPLOYEES Appellant

(LUBE)
(for B.T. Rangoanana)

and

BARCLAYS
BANK INTERNATIONAL LTD Respondent

HELD AT
MASERU

Coram :

I.
MAHOMED J.A.

S. AARON
J.A.

E.
WENTZEL J.A.

JUDGMENT

Aaron,
J.a.

The
appellant in this case is the Lesotho Union of Bank Employees acting
on behalf of one of its members, B.T. Rangoanana who had
formerly
been employed by Barclays Bank International Ltd as the Accountant of
its Maseru Branch but was summarily dismissed on
10th August, 1982. A
complaint was lodged by appellant on behalf of Rangoanana with the
Unfair Labour Practice Tribunal and it
was claimed that Rangoanana's
dismissal was an unfair labour practice in terms of section 61(2) of
the Trade Unions and Trade Disputes
Law No. 11 of 1964. It was
contended that the true reason for the dismissal was victimisation.

The
background to the dispute is that during 1982, there was a salary
dispute between appellant and the two major banks in this
country. In
February and March 1982 appellant called general strikes and in April
1982 it called for a ban on overtime work.

In terms
of a Gazette published on 25th March, 1982 banking business services
were declared to be "essential services"
in terms of the
Essential Services Arbitration Act 1975.

2

Section
17(1) of that Act provides –

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

On 7th
July, 1982, the Manager of Maseru Branch of respondent bank called
Rangoanana in and asked him whether he was prepared to
work overtime.
He declined and was then immediately handed a letter in which he was
told that he was being summarily dismissed.
The question whether that
purported dismissal was lawful or not is not in issue in this case
because on 10th July, 1982, Rangoanana,
acting on the advice of
appellant, reported for work and the notice of dismissal was then
withdrawn.

However,
on the same day he was served with a fresh notice of dismissal.
Respondent claims that it was entitled to dismiss him because
on 7th
July, 1982 when the Manager of the Maseru Branch, one Greenrod was
writing the letter of dismissal addressed to Rangoanana,
the latter
is alleged to have threatened him with a large screwdriver.

Appellant
then lodged a complaint with the Unfair Labour Practices Tribunal
("the Tribunal") in terms of Section 61 of
the Trade Unions
& Trade Disputes Law No.11 of 1964 ("the Act").

Affidavits
were filed, and oral evidence led. After analysing the evidence, the
Tribunal found that the alleged assault with the
screwdriver did not
take place, and that accordingly the dismissal of Mr. Rangoanana was
an act of victimization because he was
an active member of appellant
union, and that this constituted an unfair labour practice.

The
Tribunal then ordered that respondent should re­instate Mr.
Rangoanana to the position he had held before

3

he was
dismissed, and that as compensation for loss of earnings, it should
pay him his full salary from 1st September, 1982 to 14th
April, 1983.
It also ordered respondent to pay costs on the High Court Scale.

Respondent
then appealed to the High Court under Sec­tion 68 of the Act
against both the finding that there had been an unfair
labour
practice, and the consequent order, Molai, J. found that the
dismissal of Mr. Rangoanana was neither an act of victimization
nor
an unfair labour practice, but that there was sufficient evidence in
support of respon­dent's contention "on the grounds

disclosed in the letter of 18th August, 1982". These grounds
were that Mr. Rangoanana had threatened Mr. Greenrod with a
screwdriver. The Court a quo accordingly allowed respondent's appeal.
As it was setting aside the finding of the Tribunal, it did
not need
to deal with the consequential order.

Against
that decision the appellant now appeals to this Court. As pointed out
in another judgment which is being given by this Court
today in the
case of Lesotho Union of Bank Employees vs The Standard Bank Ltd
(CIV/APN/13/1984, "The Standard Bank case"),
such appeal
can only be on a point of law. In the present case, the grounds of
appeal were for­mulated in an agreement between
counsel as being
:

1. whether
   the judge a quo had misdirected himself and
   

   
   

2. if
   so, whether a reasonable court of appeal, properly instructed as to
   the approach to be adopted under section 68(1) of the Act,
   should
   have come to the conclusion that there was no evidence before the
   Tribunal to support a finding that there had been an
   unfair labour
   practice."

   
   

I proceed
to consider the first question.

The issue
before the learned judge was whether "there was no evidence
before the Tribunal to support the finding that there
had been an
unfair labour practice". As pointed out in the judgment in the
Standard Bank case, that provides a very limited
right to appeal on
the finding as to an un­fair labour practice: it involves an
examination of the evidence presented by the
applicant to ascertain
only whether there was evidence upon which a reasonable man might
find

4

that
there had been an unfair labour practice. It does not involve a
weighing of the applicant's evidence against that of the respondent

in order to determine whether the Tribunal should have reached the
conclusion it did. Yet weigh the evidence is precisely what
the
learned judge a quo did : e.g. at page 55 of the record his judgment
reads:

"It is significant to note that Rangoanana denied the alleged
misconduct. However, the evidence of Cummis seems to find sup­port

in Greenrod's opposing affidavit, which implied that Rangoanana had
been dis­missed for the alleged misconduct".

At pp
56/7 he stated :

"The Tribunal concluded, therefore, that the Appellant's
evidence on the question of Rangoanana'a misconduct was all a
concocted
story aimed at finding an excuse for his dismissal. With
respect I am unable to agree ............ It seems to me that on the
balance
of probabilities there was sufficient evidence in support of
Appellant's allegation that Rangoanana had threatened Greenrod with

violence on 7th July, 1982, and the Tribunal misdirected itself in
finding that he had not." (Emphasis supplied)

It is
clear from the above that the learned Judge did not appreciate the
limited nature of the enquiry before him, and that a misdirection

accordingly occurred.

That
brings me to the next question : should a reason­able Court,
properly directed as to the approach to be adopted by a Court
of
Appeal, have come to the conclusion that there was no evidence before
the Tribunal to support a finding that there had been
an unfair
labour practice.

I should
say at the outset that the Tribunal did not properly appreciate the
issue before it. For purposes of the Act, the phrase
"unfair
labour practice" has a limited meaning. Certain practices are
defined in Section 61 to 65 inclusive as being
"unfair labour
practices" and the power given to the Tribunal in terms of
Section 66 is to enquire and determine whether
any person has engaged
in "any unfair labour practice as defined in this Part of this
Law". When a complaint is lodged
with the Tribunal, the
complainant should specify under which section or sub-section

5

of the
Act it is being alleged that the unfair labour practice falls. The
Tribunal must then consider the wording of that particular
section,
and enquire and determine whether its requirements have been
fulfilled. The word "victimization" does not appear
in
Sections 61 - 65. It is a word of brad import which may cover many
acts, some of which may not constitute an "unfair labour

practice" as defined. It would accordingly be incorrect to find
that there has been victi­mization of an employee and
then to
hold as a consequence -as the Tribunal appears to have done - that
that act consti­tuted an unfair labour practice.

Be that
as it may, and whether the Tribunal was correct in its approach or
not, the question which this Court now has to determine
is whether a
reasonable Appellate Court should have found that there was "no
evidence before the Tribunal to support the finding
of an unfair
labour practice".

What was
alleged in the complaint was an unafair labour practice in terms of
Section 61 of the Act. There are two subsections to
Section 61.
Subsection 61(1) refers to dis­crimination against any person, as
respects the employment or conditions of employment
offered, because
such person is a member or officer of a Trade Union. Such
discrimination was not in issue here. The complaint,
therefore,
related to subsection 61(2). This embraces two essential elements:
firstly, the motive or objective of the person who
is alleged to have
engaged in the unfair labour practice; and secondly, the means
adopted in seeking to further the motive or objective.
The means
adopted must be either intimadation, dismissal, threat of dismissal
or any kind of threat, imposition of a penalty, the
giving of, or
offer to give, a wage increase, or any other means. The motive or
objective must be to induce an employee (not necessarily
the same
employee as the one who is being intimadated, dismissed, or
threatened, etc) to refrain from becoming or continuing to
be a
member or officer of a trade union. It is not enough to prove the
means employed, if it was not accompanied by the required
motive.
Thus, if a person is dismissed from his employment because he is a
member of a trade union, in circumstances where the
employer is not
seeking thereby to induce him or

6

any other
person to refrain from becoming or continuing to be a member of a
trade union, one may be justified in refer­ring
to that as
victimization, but it is not an unfair labour practice in terms of
Section 61(2). In every case, it will be an issue
of fact whether the
person against whom the com­plaint is brought had the requisite
motive. It will often be difficult to prove
this by direct evidence
but, like any other fact, it may be proved by inference on a balance
of probabilities.

The
issues before us arc accordingly whether there was evidence before
the Tribunal upon which a reasonable man might have found
or inferred
–

1. that
   respondent had adopted one of the means listed in Section 61(2), and

   
   

2. that
   respondent had the specific intent referred to in Section 61(2).

   
   

Evidence
was placed before the Tribunal to the effect that –

1. during
   1982, there was a salary dispute between the Union and the banks,
   which led to a strike in February and March, and a ban
   on overtime
   during April;

   
   

2. Mr.
   Rangoanana was a prominent member of appellant union, he had been
   president in 1976-77 and again in 1980-81 and at the time
   of the
   industrial action, he was on the Union's negotiating Committee;

   
   

3. approximately
   90 per cent of respondent's staff were members of the union;
   appellant was the most senior member of the staff who
   was such a
   member;

   
   

4. respondent's
   management was unhappy about the strike and the ban;

   
   

5. on
   14th June, a circular letter was sent by respondent to all staff
   members requesting them to work overtime, and warning them
   of the
   consequences of refusal;

   
   

6. on
   7th July, staff members were called in one by one, and asked whether
   they were prepared to work overtime. They were warned
   that if they
   did not undertake to do so, they would be dismissed.

   
   

Staff
members who refused to give the desired undertaking were given a
letter of dismissal. The last paragraph of such letters reads:

7

"
"should you wish to reconsider your decision and be willing to
carry out normal working under management's orders, and
in particular
to work over­time on request, you are invited to ap­ply to be
re-employed, using the attach­ed form.
Your application will be
care­fully considered."

7. on
   10th July, and on the advice of the executive committee of the
   Union, the staff members who had been dismissed all returned
   to
   work. They were re-engaged. In the case of Mr. Rangoanana, however,
   he was given a fresh notice of dismis­sal. The reason
   given for
   his dismissal was that on 7th July he had allegedly threatened Mr.
   Greenrod with a screw driver.

   
   

8. on
   12th July, the respondent addressed a further letter to Mr.
   Rangoanana in which he was advised that his dismissal had been

   commuted to one of suspension from all bank duties for one month,
   and that at the expiry of the month's suspension, his possible

   future in the bank would be reviewed.

   
   

On 10th August, he was advised that he was dismissed.

9. Mr.
   Rangoanana claimed that he was being victimi­zed as the most
   senior member of staff, and that his dismissal (on 10th July)
   had "a
   demonstrative (sic) effect" on junior members of staff. Whether
   or not this was in fact so, or whether junior
   members of staff were
   effected by their own prior dismissals on 7th July, is debatable,
   but it is not for us to debate this.:
   The point is that this
   evidence was given, and the question is whether a reasonable man may
   have acted thereon.

   
   

10. Mr,
    Rangoanana had been a member of the Union for many years, but his
    advancement in the bank had not prior to 10th July, 1982,
    been
    hindered thereby.

    
    

In my
view, it is a reasonably possible inference from these facts (though
not necessarily the probable inference) that respondent
decided to
make an example of Mr. Rangoanana by dismissing him, and sought
thereby to induce at least some of the junior members
of staff to
resign from appellant union. That being so, it cannot be said that
there was no evidence before the Tribunal to support
a finding of an
unfair labour practice. The appeal to the High Court on this finding
should accordingly have failed, even though
the Tribu­nal had not
properly directed its mind to this enquiry, and may have been wrong
in assessing the probabilities.

8

That
leave the question of the appeal to the High Court against the
consequential order made by the Tribunal. On this aspect, the
test is
whether "the order was justified". While we are of the
prima facie view that the order was jus­tified at
the time when
it was made (we did not hear argument on this point), we do not
consider it appropriate to confirm that order, in
view of the period
of time that has elapsed since it was made. The reasons for this view
are explained in the Standard Bank Case.

In the
result:

1. The
   appeal is allowed with costs, including costs in the High Court;

   
   

2. The
   order made by the Tribunal as to reinstate­ment and compensation
   is set aside, and the matter is remitted to the Tribunal
   for
   reconsi­deration in the light of the remarks made in the
   judgment in the Standard Bank case.

   
   

Signed By S. Aaron

S.AARON

Judge of Appeal

I agree
Signed By I. Mahomed

I agree
Signed By E. Wentzel

E. WENTZEL

Judge of Appeal

Delivered
on 29th this day of January, 1985 at Maseru.

Appellant
: Mr. Kuny.

Respondent
: Mr. Beckley.