IN
THE LABOUR COURT OF LESOTHO

CASE
NO LC 66/99

HELD
AT MASERU

IN
THE MATTER OF:

ISMAEL
MAKHETHA APPLICANT

AND

FLASH
CONSTRUCTION RESPONDENT

JUDGMENT

This
matter was initially heard and postponed on the 3^rd
July 2000. At the reconvened hearing on the 27^th
November 2001 the Management Panel Member Mr. Lieta was unable to
attend due to ill health. After counsels were briefed in particular

about the fact that he is not likely to be well to be with us for a
foreseable future it was agreed by all that we proceed and
finalise
the matter in terms of rule 25(2) of the Rules of the Court. This
explains why only two members have signed this judgment.

The
applicant has admittedly been employed by the respondent as a truck
driver. The truck broke down even before he completed a
month. He
was however, retained by the respondent until the end of the month
when he was paid and told that the truck he was driving
would take a
long time to be repaired. According to his evidence he was told to
keep on checking if the truck had been repaired.
According to the
witness of the respondent Mr. Teboho Mabulu the applicant was told by
a Mr. Glenn that he would be laid off and
that he should keep
checking, because he would be given first priority in employment when
the truck is repaired.

The
applicant says he kept checking. On the fourth occasion he was told
to furnish telephone numbers where he can be contacted
so that he
does not have to check every often. It was in April when his truck
broke down. He was paid up to the 25^th
April 1998 and he had at that time admittedly been employed for
twenty days. Applicant says in November he saw the truck in town

being driven by somebody else. The following day he went to check
and he was told that the person he saw driving the truck was
the one
employed to drive it. He then asked for his dismissal letter which
was issued the same day namely 6^th
November 1998. the letter showed the reason for termination of the
applicant to be that he was employed as a temporary driver.

On
the 31^st
December 1999, the applicant launched proceedings in this court
seeking relief in the following terms:

1. Payment
   of severance pay

   
   

2. Payment
   of arrears of salary for the months of April to October 1998

   
   

3. Payment
   of leave

   
   

4. Payment
   in lieu of notice.

   
   

The
grounds on which relief is sought are contained in paragraph 3(d) of
the Originating Application. These are that the .....dismissal
is
both procedurally and legally unfair in that he was never afforded
the opportunity to defend himself against any wrong he might
have
committed and/or informed or consulted about the reasons for his
termination...” It was Mr. Putsoane’s contention that
the
applicant remained an employee of the respondent until the 6^th
November when he was served with the letter notifying him of his
termination.

The
originating application in this matter was filed more than a year
after the course of action arose. In terms of section 70(1)
of the
Labour Code Order 1992 (the Code) claims for unfair dismissal must be
presented to this court within six months of the termination
of the
contract. The court may condone late filing if it is satisfied that
the interests of justice so demand (section 70(2) of
the Code). This
entails that a defaulting party must make an application for
condonation of the late filing. No application for
condonation has
been made. Accordingly this court lacks the jurisdiction to deal
with the claims for unfair dismissal. Even all
the consequential
reliefs that flow from the determination of the fairness or otherwise
of the dismissal must also fall away.
This takes care of the claims
for compensation, and arrears of salary and notice pay.

With
regard to severance pay Mr. Putsoane conceded correctly that
severance pay cannot be claimed because the applicant had not
yet
completed one year’s service. With regard to leave it is an
entitlement which accrues after the completion of at least three

months. (see section 120(5) of the Code). Now the applicant had
only been in employment for twenty days. Consequently he had
accrued
no leave entitlement. In the premises this application cannot
succeed. It is accordingly dismissed. There is no order
as to
costs.

THUS
DONE AT MASERU THIS 11TH DAY OF DECEMBER, 2001.

L.A
LETHOBANE

PRESIDENT

M.S.
MAKHASANE

MEMBER I
AGREE