IN
THE LABOUR COURT OF LESOTHO

CASE
NO LC 14/97

HELD
AT MASERU

IN
THE MATTER OF:

MOKHATHALI
SIMON SEKOTA APPLICANT

AND

LOTI
BRICK (PTY) LTD RESPONDENT

JUDGMENT

This
is a case in which the applicant is seeking relief in the following
terms:

1. Declaration
   that his dismissal is null and void, of no force and effect.

   
   

2. Reinstatement
   to his post.

   
   

3. Payment
   of his salary and benefits from the date of purported dismissal to
   date of judgment.

   
   

The
case arises out of the dismissal of the applicant from the employ of
the respondent company on the 1^st
July 1996. The alleged reason for dismissal was poor performance.
The applicant had been employed as the Finance and Administration

Manager of the respondent. According to the evidence of DW1, the
former Managing Director of the respondent, the applicant was

effectively the number two man in the hierarchy of the respondent.
He was deputising the Managing Director in his absence and
was the
Corporate Secretary of the respondent as well.

The
applicant avers that his dismissal was unfair in one or all of the
following respects:

1. the
   reason(s) advanced for applicant’s dismissal were not sustainable,
   in other words he challenges the substantive fairness
   of his
   dismissal.

   
   

2. Applicant
   was not afforded a chance to defend himself before dismissal.

   
   

3. The
   respondent failed to observe the personnel regulations concerning
   procedure for conducting of disciplinary hearing.

   
   

4. Applicant
   was dismissed by the Board of Directors in contravention of the
   personnel regulations which vests the power to dismiss
   staff in the
   Managing Director.

   
   

It
is common cause that the respondents cite as examples of applicant’s
poor performance, slow process of computerisation of accounts;

failure to obtain approval of request for overdraft by the Board of
Directors because the current financial statement which the
Board had
asked for was wrong and the 1996/97 budget estimates which were
rejected by the Board because the budgetary figures provided
by the
applicant did not truly reflect the position of the company.
According to the evidence of DW2 Mr. Sam Rapapa, former Finance

Director of the LNDC which is a majority shareholder of the
respondent, other factors such as apparent lack of interest in
learning
computer skills also contributed.

With
regard to computerisation DW1 said he had been advised by the LNDC’s
Director of Finance who had previously been respondent’s
Finance
Manager that there was delay in the computerisation of those
accounts which were not yet computerised and there was tardiness
in
updating of those accounts which were already computerised. The
applicant for his part denied that the problem of slow pace
of
computerisation could be laid at his doorstep. He instead blamed it
on the companies that had been contracted to install the
modules
which he said did not do their part of the bargain. He averred that
those companies had at last to be taken to court by
the respondent.
Under cross-examination Mr. Teele had occasion to ask the Managing
Director DW1 if there was ever any court proceedings
instituted
against MISER, the company contracted to install the modules, and DW1
categorically denied that there was any court
action taken.
Applicant’s testimony about the court case it must not in our view
be believed as there is nothing in the papers
or in evidence to
support.

Under
corss-examination by Ms Sephomolo the applicant conceded that he was
responsible for operation and functioning of the assets
of the
respondent including computers. In his evidence in chief DW1 averred
that the Finance Manager i.e. applicant was responsible
for the
functioning of the computers of the respondent. In his evidence the
then LNDC Finance Director Mr. Rapapa averred that
computers at Loti
Brick were introduced by him whilst he was the respondent’s Finance
Manager. He continued to have interest
in the computerisation
programme of the respondent even after he moved to LNDC, the parent
company of the respondent.

He
had interest because he in the final analysis was responsible for the
production of the Group Financial statement. To this end
he had
interest in ensuring that the accounting system of the respondent was
fully computerised. He testified that he discussed
the programme
with the applicant and his staff and they said they had problems
understanding it. As Mr. Sekota’s predecessor
he offered his
services to train him and his staff on the programme staring at 7.00
in the morning. He testified that except for
two people who he did
not single out, staff did not show interest in showing up for these
morning sessions. In particular the
applicant was not always in
attendance.

This
prompted Mr. Rapapa to write a lengthy report to the Managing
Director on the 9^th
June 1995. He highlighted the importance of the modules for
reporting purposes and urged that they should be installed. He
observed
that the modules already installed were not being updated as
necessary. He particularly chastised the applicant and the
accountant
for not showing the initiative to learn how the programme
works and for not updating the journals which were two years behind
schedule.
In that letter the Finance Director lays down datelines
within which the updates must be done and again urges that the
applicant,
the accountant and staff must change their attitude
towards the programme.

On
the 14^th
May 1996 almost a year later, the LNDC Finance Director submitted yet
another report to the Managing Director of the respondent.
The
letter once again paints a dark picture regarding progress on the
computerisation programme. He again castigates the applicant
for not
taking the initiative to learn the system. According to the letter
the journals were still not being updated as necessary
and in general
there was no progress.

It
is common cause between the parties that after the LNDC Finance
Director’s letter of 9^th
June 1995, DW1 arranged a meeting between applicant on the one hand
and the LNDC Finance Director and the Managing Director on
the other
hand. The meeting was intended to discuss the alleged poor
performance of applicant’s division. It was held at China
Garden
restaurant. Whilst not denying that such a meeting took place and
that non-functioning of computers was discussed, applicant
however,
says he regarded it as an informal discussion which would not come up
with any definitive conclusions as it did not even
have an agenda.
Respondent for their part say this meeting was meant to advise
applicant to improve his performance. In his evidence
DW2 says
actually applicant was given six months within which to put his house
in order. However, after those six months there
was still no
improvement.

It
seems to this court that the evidence regarding applicant’s
unsatisfactory performance particularly on the computerisation

programme is very solid and unshakeable. Apart from oral evidence
which to a large extend applicant confirms, save to try and
undermine
it by passing the blame to the company contracted to install the
modules, there is also these lengthy reports of the
LNDC Finance
Director which show a pattern of poor performance and lack of
interest to learn on the part of the applicant. As
regards MISER
which applicant seeks to blame, each time the LNDC Finance Director
reported to the respondent’s Managing Director
he never forgot to
repeat “I strongly recommend that MISER CONSULTING should be
pressured to install these modules.” This
recommendation is in the
letter of 9^th
June 1995 as well as that of 14^th
May 1996. There is not an iota of evidence to show what action(s)
applicant took to ensure that the programme succeeded. We are
of the
view therefore, that respondent has been able to show that the blame
for the non-functioning of the computers and full computerisation
of
the accounts of the respondent should be shouldered by the applicant.

Mr.
Teele contended that, under cross-examination DW1 abandoned his
testimony of slow pace of computerisation and failure to update
those
accounts that were already computerised as the main source of
displeasure with applicant’s performance. He argued further
that
DW1 also abandoned the evidence regarding delay in the submission of
accounts to LNDC. Indeed when Mr. Teele required DW1
to confirm
under cross-examination that the above allegations were his evidence
he categorically denied that those were his evidence.
He was quite
correct in denying as he did, because he stated both in his oral
testimony and in his sworn affidavit that these
are matters that he
was told by the LNDC Finance Director whom he verily believed. The
reports written to DW1 by the LNDC Finance
Director (DW2) bear
testimony to this. As regards the allegation of delays in submission
of accounts to LNDC, DW1 says in his
testimony that the complaint
came from applicant’s juniors who came to complain to him that
accounts were delaying to be produced
because applicant was not
helping them. In paragraph 10 of his sworn affidavit DW1 says the
LNDC Operations Division also raised
the concern of delays in
submission of accounts to LNDC. For his part applicant stated
clearly in his evidence in chief that he
was a mining engineer with
no knowledge of accounts whatsoever. For accounts he relied entirely
on the applicant. He could not
therefore testify positively on
accounting functions.

As
it would have been expected, the LNDC finance Director (DW2) did
positively testify about delays in the submission of accounts
as well
as the slow pace of computerisation of accounts. This is
understandable because he was the one who in the end would prepare

and produce the consolidated financial statement which required input
from all the LNDC’s subsidiaries and associated companies.
It was
DW2’s evidence that these delays were a subject of discussion
between him and DW1 on one hand and applicant on the other
hand at
the China Garden Restaurant. Applicant had been asked to improve on
this aspect as well, within a period of six months,
but as we have
seen from the later report of DW2 to DW1 there was still no
improvement, because the accounting system was still
not fully
computerised in May 1996.

Mr.Teele
contended that DW2’s evidence is irrelevant because he was an
outsider who had nothing to do with the affairs of the
respondent.
Firstly DW2 clearly stated how he became of continued relevance to
the respondent company. He was applicant’s predecessor.
He had
introduced computerisation to the respondent which he continued to
have interest in seeing that it succeeded. So much
so that he even
offered his services to help because applicant was new and not
familiar with the system. Most importantly, the
successful
computerisation of the accounts of the respondent would directly
impact on his own work as that would ensure accurate
reporting and
timely submission of respondent’s accounts to his office (DW2) for
inclusion in the group financial statement which
was the
responsibility of DW2. Secondly, the applicant was the member of the
Board of Directors of the respondent company. This
evidence was
never controverted. Surely a person in the respective positions that
we outlined cannot be dismissed simply as an
outsider. Applicant was
effectively DW2’s employee. He cannot therefore be heard to say
DW2 is an outsider.

DW1
testified that as a further proof of applicant’s ineptitude in
accounting function, the company’s application to the Board
of
Directors for approval of an application for an overdraft facility at
the bank was rejected by the Board due to faulty accounts.
Even
though the application was finally granted it was through what in
corporate world they call Round Robin resolution. This
was explained
by DW1 as meaning that, since at the end of the meeting the Board had
rejected the accounts due to their inaccuracy;
the company was given
a second opportunity to present proper accounts by 15^th
March 1996. However, since the Board could not be convened again the
resubmitted accounts were circulated to members to sign if
they
agreed with them. Having all signed as proof of their acceptance of
the accounts the overdraft request was thus approved.
The resolution
thus adopted is called Round Robin Resolution. Clearly applicant’s
version that the accounts were approved was
inaccurate in as much as
they were approved only after they were given a further opportunity
to resubmit them.

Applicant
testified that the accounts in question had not been prepared by him
as he had been on sick leave due to a vehicular accident.
He
admitted under cross-examination that the agenda item on accounts was
presented by him. In his evidence DW1 said the accounts
were
produced by the applicant because he used to come to work to help as
he had asked him to do so due to the pressure of work.
This may well
be so, but this was not put to the applicant whilst he was in the
witness box to enable him to rebut or confirm
it as the case may be.

It
is not disputed that the applicant was on sick leave at the material
time. Applicant however, tried to explain his presence
at the Board
Meeting purely in a capacity of Corporate Secretary. Now this is
highly improbable. Why would he be there in one
capacity only and
not the other, when he holds both portfolios of Corporate Secretary
and Finance Manager? The only logical conclusion
that one would be
led to reach would in the circumstances be that he was trying to
distance himself from accounts because that
agenda item had problems.
By the same token the applicant was being untruthful, when in answer
to a question from Ms Sephomolo
under cross-examination as to whether
the document he presented had inconsistencies he said it did not. He
was further asked by
Ms Sephomolo if the Board was happy with the
document his answer was an evasive “I don’t know.” This could
not be true because
he testified in chief that DW1 told him that the
Board was not happy. At the time he was asked the question by Ms
Sephomolo it
was already within his knowledge that the Board was
unhappy.

In
his own testimony in chief the applicant said the Board had asked him
to present the agenda item on accounts unaware that he
had been on
sick leave. This alone dispels the suggestion that the applicant was
at the Board Meeting only in the capacity of
Corporate Secretary. It
appears, however, that the applicant did not explain to the Board
that, though you are inviting me to
present this agenda item, I am
not familiar with it, because I have at the time of the preparation
of the document been booked
off sick. By so doing he assumed
responsibility for the document and all its strengths and weaknesses.
It appears therefore,
that the Board had the basis on which to feel
unhappy about him, for he did not dissociate himself from the
document at that time
save much later, when he learned that the Board
was unhappy with it.

There
is however, a further factor of inconsistency in applicant’s
testimony on this issue. When he was asked by Ms Sephomolo
under
cross-examination why he presented a document he did not prepare he
said the practice was that the Managing Director would
introduce the
whole document and make general remarks about its contents.
Thereafter each Divisional Head would present the chapter
relevant to
his division and their staff in different sections would provide
detailed analysis where needed. This is in stark
contrast with what
he said in chief when he said the Board invited him to present the
agenda item. The question that arises is
why this inconsistency?
What is applicant trying to hide? We accordingly are of the view
that the applicant is well aware of
the unsatisfactory accounts that
were presented to the Board hence his attempt to dissociate himself
from the document albeit belatedly.
There was therefore merit in
ascribing poor performance on this document on him.

Not
long after the Board meeting which was to request an application for
an overdraft facility the management of the respondent
again went
back to the board for the tabling of the 1996/97 budget estimates.
The Board was again unhappy with the accounts presented
by the
applicant. “The budgetary figures provided by Mr. Sekota were not
from the 1995/96 budget and therefore did not truly
reflect the
position of the company.” (see paragraph 15 of DW1’s founding
affidavit). DW1 testified that after that meeting
the Board asked
him to remain. He was asked what he was doing about the situation.
He promised that he would correct it. He
then later called applicant
to tell him that the Board was unhappy with his performance and that
to avoid him dismissing him he
would ask him to resign. Applicant
asked for more time to rethink the matter. The next thing applicant
wrote him annexure “C”
to the Originating Application in which he
stated that he was refusing DW1’s offer for him to resign.

Mr.
Sekota has again sought to distance himself from the inaccuracies
reflected in these documents by saying he had been on sick
leave.
However, it came out during DW1’s cross-examination that the second
meeting was to be held after applicant returned from
sick leave.
Even if the budget may not have been prepared by him he had the time
to check if it was correct as the Finance Manager.
Mr. Teele’s
attempts under cross-examination to get DW1 to concede that the
difficulty with the budget was a result of other
difficulties the
company had could not succeed. He was solid in maintaining his
stance that the faulty accounts were a result
of applicant’s poor
performance. It is worth noticing that at the time that DW1 was
giving evidence he was no longer employed
by the respondent. He, in
our view would have had no ulterior motive in maintaining that
applicant was performing below standard.
We accordingly are inclined
to believe his version.

Mr.
Teele on behalf of the applicant sought to discredit respondents’
witnesses’ testimony in this regard by arguing that whether
the
Board was happy or was not happy about the accounts can best be
attested by the minutes, not an individual’s recollection.
He said
DW1’s evidence in this regard was a mere recollection. In our view
the minutes are an alternative form of proof in
the absence of
evidence on oath. Where there is evidence on oath as was the case in
casu and there is no reason to disbelief the
witness’s version,
such evidence should suffice. Minutes may be used in this regard to
disprove the witness’s oral testimony,
or to support it, but
necessarily so. We are happy with DW1’s evidence in this regard as
we have no reason to disbelief him.
On its own it is sufficient for
our purposes.

The
applicant testified that the allegation that he was not performing up
to the expected standard was not bonafide in that the
company had a
system of annual appraisals. In May that year he had been positively
appraised by the Managing Director DW1. It
was therefore, a surprise
that in June he was accused of poor performance. In support of this
averrement he referred us to annexure
“A” to the Originating
Application. When he was asked whether it is true that he positively
appraised applicant in May 1996,
DW1 agreed, but said the applicant
was a good Manager and that the positive appraisal concerned this
good side. He conceded that
he ought to have sated applicant’s
weak side, but did not do so. Indeed earlier in his testimony DW1
had mentioned this strong
side of the applicant and said he had gone
so far as to attempt to separate the two roles of administration and
finance so that
he could create a position of Human Resources Manager
for applicant. This would enable applicant to exclusively deal with
administration.
The request was however turned by the Board. (see
paragraph 11 of DW1’s founding affidavit). Throughout his
testimony, DW1
has struck us as an honest, fair and truthful witness
whom we are of the view that his testimony regarding applicant’s
positive
appraisal in May 1996 should be believed. That much goes
for the substantive fairness of applicant’s dismissal, which we are

of the firm view that it has been established by evidence led before
us.

Turning
now to the procedural aspect, it was applicant’s contention that
his dismissal was unfair in as much as he was not given
a hearing in
terms of regulation 22.5 of the respondent’s Personnel Regulations.
He denies that he was ever called to a meeting
where he was
reprimanded to improve his performance. He further contends that had
he been given the opportunity to be heard he
would have made it clear
to the Board that the faulty accounts were not prepared by him but
were done by the accountant. Indeed
DW1 in his testimony, while
insisting that he had on several occasions met with applicant to warn
him about his poor performance,
he however did not advise him that
continued failure to improve might lead to his dismissal.

It
is significant that regulation 22.5 on which reliance was made by the
applicant states in clear terms that “conditions under
which the
convening of a disciplinary committee (sic) is discretionary.” It
goes further to say “the Managing Director may
convene a committee
when he/she judges that the situation calls for it.” It follows
therefore that even the China Garden restaurant
meeting which
applicant clearly frowns upon as not being in accordance with the
provisions of the personnel regulations could well
serve as a
disciplinary committee meeting. This is not to suggest that it did
serve that purpose for as the applicant stated it
was not made clear
to him that he was facing disciplinary charges. But given the wide
discretion vested in the Managing Director,
it could serve that
purpose if the Managing Director had desired so.

What
is clear is that the committee envisaged by the rules would not be
practicable in the case of the applicant because such a
committee has
to be made of, inter alia, “the divisional head of the
organisational unit for which the employee in question works.”

(regulation 22.3). The applicant himself was the divisional head of
the organizational unit for which he worked. He could not
therefore,
be a judge in his own course. This is where the discretion vested in
the Managing Director would have to be resorted
to regarding the
procedure to be followed.

In
his letter of the 31^st
July 1996 to the applicant (annexure “D” to the Originating
Application) the Managing Director states in paragraph 2 that;

“I
must confess your letter surprised me because I thought we had
amicably resolved the issue of termination of your services at
Loti
Brick, having talked about it and in consequence of which I wrote you
a dismissal letter.”

This statement has
not been denied by the applicant. In his testimony DW1 said after
the Board meeting he called applicant and
informed him that he must
have been aware that the Board was unhappy with his performance. He
went further to say that he asked
applicant to resign to avoid being
dismissed. Applicant asked for more time to think over the issue
which the Managing Director
granted him. This was confirmed by the
applicant in his testimony when he said the Managing Director called
him in the afternoon
to inform him of the Board’s unhappiness. He
stated that he asked to be given the weekend to think of the
proposal. Now how
much further opportunity to make representations
did applicant require? He had the whole weekend to think over the
matter and
on Monday he had the opportunity to make whichever
representations he wished to make. It appears he did not do so. His
failure
to utilize the opportunity availed to him cannot and should
not be blamed on the respondent. Clearly in exercise of his
discretion
the Managing Director decided that he should himself
discuss the problem directly with the applicant as he infact was
literally
his number two man. We find nothing untoward in this
approach and applicant should have made his representations if any to
the
Managing Director.

The
final leg of applicant’s contention was that the applicant was,
contrary to the personnel regulations dismissed by the Board
of
Directors instead of the Managing Director. Mr. Teele tried very
hard to pin DW1, the Managing Director to accede to his suggestion

that it was not him who dismissed the applicant but the Board. The
applicant steadfastly refused and insisted that he is the one
who
dismissed the applicant. He accepted that the Board expressed
misgivings about applicant’s performance which he took into
account
in deciding on the line of action to be taken. As for the decision
it was his and not of the Board. Indeed even in the
letter of
dismissal there is not a single word or phrase which may lead one
into a conclusion that the decision to dismiss was
that of the Board
and not the Managing Director. In the circumstance we are of the
view that there is no merit in the submission.
Accordingly this
application is without merit as there is neither substantive nor
procedural unfairness in the applicant’s dismissal.

The
application if therefore dismissed and there is no order as to costs.

THUS
DONE AT MASERU THIS 14TH DAY OF MAY, 2001.

L.A
LETHOBANE

PRESIDENT

P.K.
LEROTHOLI

MEMBER I
AGREE

G.K.
LIETA

MEMBER I
AGREE

FOR
APPLICANT : MR TEELE

FOR
RESPONDENT: MS SEPHOMOLO