IN
THE LABOUR COURT OF LESOTHO

CASE
NO LC 81/00

HELD
AT MASERU

IN
THE MATTER OF:

NTJOLO
LEUTA 1^ST
APPLICANT

NEPHTALI
MAKOKO 2^nd
APPLICANT

AND

LESOTHO
BREWING COMPANY (PTY) LTD RESPONDENT

JUDGMENT

The
applicants herein launched the present proceedings against the
respondent herein seeking relief in the following terms:

2. Declaring
   the resignation of the applicants in terms of section 68(c) of the
   Labour Code Order to have amounted to constructive
   dismissal of the
   applicants by respondent.

   
   

3. Declaring
   the said dismissal to have been wrongful, unlawful and unfair.

   
   

4. (i)
   Directing the respondent to pay applicants their full entitlements
   and benefits arising out of their contracts of employment
   with
   respondent of their remaining period of service before their
   retirement.

   
   

5. 
   Alternatively:

   
   

6. (ii)
   Directing the respondent to pay applicants their monthly salary at
   the current rate as compensation from purported date of
   dismissal to
   the date of due retirement.

   
   

7. Directing
   that salary and benefits be set off against any loan proved to be
   outstanding in favour of respondent.

   
   

8. Directing
   the respondent to pay costs of this application.

   
   

9. Granting
   applicants such further and/or alternative relief.

   
   

The
two applicants jointly filed the present application on the 30^th
June 2000 claiming as stated that they had been constructively
dismissed by the respondent company. Reading from their Originating

Application, save for their common concern that they felt
constructively dismissed by the respondent, there is nothing common
in their respective cases as to have led them to have filed a joint
application. The Originating Application was therefore,
objectionable.
However, it appears that the respondent did not
object thereto ostensibly because they were going to raise a point in
limine which
applied to both applicants.

It
is common cause that the first and second applicants resigned from
the respondent company on the 3^rd
June 1999 and 8^th
July 1999 respectively. They filed the present proceedings on the
30^th
June 2000 which was approximately one year and one month in the case
of the first applicant, and nearly one year in the case of
the second
applicant; after the respective termination of their contracts of
employment. At the hearing hereof Mr. Woker for the
respondent
raised a point in limine that this court lacks jurisdiction to
entertain this matter as the applicants have failed to
comply with
section 70(1) of the Labour Code Order 1992 (the Code) which provides
as follows:

“(1)
A claim for unfair dismissal must be presented to the Labour Court
within six months of the termination of the contract of
employment of
the employee concerned.”

He referred to
the judgment of Ramodibedi J in Lesotho Brewing Co. t/a Maluti
Mountain Brewery .v. Labour Court President CIV/APN/435/95
at p.22
where the learned judge stated that:

“...I
am of the firm view that the jurisdiction of the Labour Court in a
case where a claim for unfair dismissal has prescribed only
arises
from that court actually granting condonation if satisfied that the
interests of justice so demand. Conversely if no condonation
is
granted then the Labour Court has no jurisdiction in the matter.”

Mr. Woker
contended further that this is not a proper case where the court can
be “...satisfied that the interests of justice
demand” that the
presentation of the claim outside the six months limit be allowed,
because the applicants had effectively terminated
their contracts of
employment on their respective dates of resignation and should have
approached the courts before the expiry
of the prescribed time limit.

Mr.
Mosito for his part conceded that an unfair dismissal claim has
indeed lapsed in terms of section 70 of the Code. He contended
that
the application of section 70 would, however, only affect prayer 8(b)
of his Originating Application, as that is the only
sub-paragraph
that seeks to have the dismissal declared unfair. He contended that
section 70 has no application to the rest of
the prayers as they do
not have anything to do with unfair dismissal. His clients’ case
is one of constructive dismissal he
argued.

Looking
at paragraph 8 of the Originating Application one is left with no
doubt that the principal relief claimed by the applicants
is that
contained in sub-paragraph 8(a) namely; to declare the applicants
resignations “...to have amounted to constructive dismissal...”

All other prayers are, to use Mr. Woker’s argument flowing from it.
They are all based on a favourable finding in prayer 8(a).

Conversely if prayer 8(a) fails they all fall away.

It
was Mr. Mosito’s argument that applicants’ case is one of
constructive dismissal not unfair dismissal as such it should not
be
found to have been affected by section 70(1) of the Code. Mr. Woker
in response referred to section 68(c) of the Code which
defines
dismissal as including;

“c.
resignation by an employee in circumstances involving such
unreasonable conduct by the employer as would entitle the employee
to
terminate the contract of employment without notice, by reason of the
employer’s breach of a term of the contract.”

Incidentally
this is a clause that the applicants based their resignations on.
Clearly therefore, they were saying that the respondent
has dismissed
them through its unreasonable conduct. Now for any remedy to flow to
an employee who is challenging his or her dismissal
the dismissal
must be ruled by this court to be unfair. It follows that for
constructive dismissal to be actionable, it must amount
to an unfair
dismissal.

Indeed
in subparagraph 8(b) which Mr. Mosito unconditionally conceded it
should fall away, he had averred correctly as follows:
“declaring
the said
dismissal
to have been wrongful, unlawful and unfair.” (emphasis added).
The said dismissal, which we have emphasized, refers to the

dismissal spoken about in sub-paragraph 8(a) namely, constructive
dismissal in terms of section 68(c). He is therefore, aware
that
resignation of an employee under section 68(c) amounts to dismissal.
Clearly therefore, dismissal arising out of an employee’s

resignation under that section amounts to an unfair dismissal which
ought to be brought to court in compliance with section 70(1)
of the
Code. The concession made in relation to sub-paragraph 8(b) should
have been made on sub-paragraph 8(a) as well, and indeed
all other
prayers because as we stated earlier the rest of the prayers all flow
from prayer (a). Their validity depends upon the
court making a
favourable finding in prayer 8(a).

It
came out during arguments that this matter had first been filed in
the High Court. However, this was never pleaded by the applicants
in
any manner whatsoever. It only emerged in respondent’s answer. It
does not therefore form part of the applicants’ case
before this
court. Accordingly nothing useful will flow from its consideration.
It was also argued that section 70 of the Code
no longer has
application as it has been repealed by section 19 of the Labour Code
(Amendment) Act 2000. There was initially a
hot debate on whether
the Amendment has commenced operation. It has become clear that
since the amendment does not specify its
date of commencement it has
come into operation in terms of section 16(b) of the Interpretation
Act 1977 which provides in part
that; “every Act shall come into
operation on the expiration of the day next preceding the day of its
publication” unless it
is provided in the Act that such Act shall
come into operation on some other day.

In
response to the argument about the repeal of section 70 of the Code
Mr. Woker referred us to section 18 of the Interpretation
Act which
provides in part as follows:

“18.
Where an Act repeals in whole or in part another Act, the repeal
shall not

(a)......

2. affect
   the previous operation of the Act so repealed or anything duly done
   or suffered under the Act so repealed;

   
   

3. affect
   any right, privilege, obligation or liability acquired;

   
   

4. .......

   
   

5. affect
   any investigation, legal proceedings or remedy in respect of any
   such right, privilege, obligation, liability....referred
   to in
   paragraph (c) and (d); and any such legal proceedings or remedy may
   be instituted, continued and enforced....as if the
   repealing Act had
   not been passed.”

   
   

It
is common cause that the causes of action herein arose on the 30^th
June 1999 and 8th July respectively. In terms of section 16(b) of
the Interpretation Act the Labour Code (Amendment) Act came
into
operation on the 24th April 2000 as this was the day next preceding
the day of its publication in the Gazette. In terms of
section 18(e)
read with section 18(c) the present proceedings can be proceeded with
as they relate to things done or suffered under
the repealed section
70 of the Code. Indeed there is a well-known presumption of law
against retrospective application of statutes
unless such is the
express intention of the legislature.

The
conclusion to which we arrive is that this court lacks jurisdiction
to entertain these proceedings in the absence of express
condonation
of the applicants’ late filing of the Originating Application. The
claims were clearly inordinately out of time
and warranted to have
been accompanied by a condonation application. Accordingly
applicants’ application is dismissed on account
of being time
barred and consequently the court does not have jurisdiction to hear
it. This being a claim for unfair dismissal
there is no order as to
costs.

THUS
DONE AT MASERU THIS 2ND DAY OF MARCH, 2001.

L.A
LETHOBANE

PRESIDENT

A.T.
KOLOBE

MEMBER I
AGREE

S.M.
MAKHASANE

MEMBER I
AGREE

FOR
APPLICANT : MR MOSITO

FOR
RESPONDENT: MR WOKER AND MR. ROBERTS