IN
THE LABOUR COURT OF LESOTHO

CASE
NO LC 93/00

HELD
AT MASERU

IN
THE MATTER OF:

PATRICIA
MAAPESA APPLICANT

AND

ELLERINES
HOLDINGS LTD RESPONDENT

JUDGMENT

The
present judgment is the result of our unanimous decision on this
case. However, the learned labour panel member Mr. Makhasane
has
left Lesotho for training in Namibia before the finalisation of the
written judgment. Accordingly, even if he has not appended
his
signature to the judgment, as is infact the case, we attest to the
fact that he associates himself with the judgment and the
reasons
therefor. If, however, this were not to be so, we the remaining two
members assume full responsibility for this judgment
in terms of rule
25(2) of the rules of this court which provides that;

“(2)
Where during the course of such hearing a vacancy arises or
vacancies arise in the membership of the Court, provided the
remaining
members constitute a majority of the original membership of
the Court, the decision of the remaining members shall be the
decision
of the Court.”

The
applicant herein seeks relief from the respondent company in the
following terms;

1. An
   order directing the respondent to re-instate applicant to her job
   and position without loss of remuneration;

   
   

2. granting
   the applicant further and or alternative relief;

   
   

3. granting
   the applicant the costs of this application.

   
   

The
applicant was employed by the respondent at one of its furnisher
stores called Furn City. She was dismissed in June 2000 following
a
disciplinary hearing in which applicant was charged with poor work
performance. Applicant was confronted with five charges all
of which
arose out of an alleged poor work performance.

At
the hearing hereof counsels availed a record of the disciplinary
proceedings and agreed not to lead any oral evidence, but to
confine
themselves to the record of the proceedings. They further agreed to
ask the court to determine whether the proceedings
were fair and to
dispose of this case on that basis.

Mr.
Sello on behalf of the applicant argued that the prosecutor was
acting as both prosecutor and witness as such it was not possible
for
him to be cross-examined. Ms Sephomolo for the respondents denied
that this was so. She argued, correctly in our view, that
the
prosecutor was relying on documentary evidence which he read out and
presented to the enquiry. As regards cross-examination,
the record
is testimony to the fact that each time after the prosecutor
presented his case the chairman would ask the applicant
and her
representative if they had questions. There would not in our view
have been any more chance than that for the applicant
and her
representative to put questions to her accusers.

Mr.
Sello contended further that the applicant was not given chance to
testify and that her representative acted as both representative
and
witness. If by saying applicant was not allowed chance to testify it
is suggested that her witnesses were refused chance to
testify, that
would be totally incorrect as there is no evidence to support this.
If however, it is meant that a chance was not
availed for her and/or
her witnesses to testify, it seems to us that that would fly in the
face of the chairman’s last question
under charge 1 where he asks,
“Are you fine with charge 1?” Everybody including applicant
answered “yes”. If applicant
had wanted to call any witnesses
she could have indicated at that stage at least, that she had some
witnesses to call.

Regarding
the allegation that the representative acted also as a witness, there
is nothing in the record that was shown to us that
bears testimony to
this claim. Assuming however, that this was so, it seems to us that
there would be nothing untoward in the
procedure. If the
representative could attest to some facts in favour of the applicant
that would be entirely in order. Infact
that would then contradict
the earlier submission that the applicant was not allowed a chance to
testify or to lead her witnesses.

Mr.
Sello contended further that the hearing was no more than going
through notions in as much as applicant’s conviction was a
forgone
conclusion. He contended that there was a conspiracy to dismiss
applicant on the basis of false and non-existent charges.
Now the
issue of conspiracy as well as that of false charges are maters of
evidence which we have not had the benefit of hearing.
Accordingly
we cannot make a finding on them.

As
regards a claim that the applicant’s conviction was a forgone
conclusion he referred us to the lengthy explanations that the

applicant gave under each of the charges. He pointed out that in
arriving at his conclusions the presiding officer ignored completely

the applicant’s explanations. This much is evident from the
rulings of the chairman under each of the charges. There is not
the
slightest indication that he considered applicant’s defences and
disagreed with same as it was within his power to do so.
In answer
to a question from a panel member of the court Ms Sephomolo did
concede that the chairman failed to consider in his
rulings whether
applicant’s explanations were plausible.

Finally
Mr. Sello contended that in virtually all the charges the chairman’s
findings are not based on the evidence led at the
enquiry. Indeed
under charge 1 “Failure to capture report back entries to the
computer and archive it,” the chairman does
not say that the
evidence led has established the charge or that the applicant did
fail as alleged to capture information on the
computer. He instead
makes his own analysis of what the consequences of failure to capture
information on the computer are to
the company. But this does not
mean that the applicant failed to capture information as alleged or
that the prosecutor has proved
the charge as required. The chairman
goes further to say that there was a final warning issued to the
applicant on the same charge.
However, nowhere was this warning put
to the applicant during the disciplinary proceedings to enable her to
comment. Reliance
on it was therefore unfair in the sameway that
reliance on evidence that was not led at the enquiry is unfair.

On
charges 2 and 3 the same irregularity of not relying on evidence led,
but giving the chairman’s analysis and personal knowledge
of the
consequences of not meeting certain standards repeats itself. In
charge 3 there is again reference to a final warning which
applicant
was not afforded the chance to rebut during the disciplinary
proceedings. The same mistake is repeated in charge 4.
However, in
the last sentence the chairman remarks as follows: “Here there was
no prove that Credit Manager worked on the Minutes
therefore she is
guilty.” The charge here was “Failure to follow up and carry out
instruction minutes issued on monthly MBO
review minutes.” When
the chairman says there is no prove that the Credit Manager
(applicant) worked on the minutes, he was
clearly putting the burden
of proof on the applicant. It is trite law that he who alleges must
prove. The applicant could not
therefore be expected to prove her
innocence. It seems to us therefore that the disciplinary enquiry on
the charges that resulted
in applicant’s dismissal was fraught with
irregularities of both a procedural and substantive nature resulting
in applicant’s
dismissal amounting to an unfair dismissal.

The
relief sought by applicant is reinstatement. In their Answer the
respondents have not addressed this paragraph. At the end
of her
argument Ms Sephomolo applied to be allowed to lead viva voce
evidence on this point. This application met with stern opposition

by Mr. Sello. As it has been held in SA Society of Bank Officials
.v. First National Bank of Southern Africa (1996) 17 ILJ 135
Labour
Court proceedings are not pleadings strictu sensu as understood in
ordinary courts. It is also not in accordance with Labour
law
jurisprudence or fair labour relations practices to place undue
technical hurdles before litigants in Labour Court proceedings.

However, an issue such as a claim for reinstatement towers tall for
all to see and notice. The respondent cannot claim oversight
of an
issue as significant as a prayer for reinstatement.

Assuming
there was an oversight, which is highly unlikely, the respondent had
the opportunity of applying for an amendment to rectify
that anomaly.
That not having been done, we are faced with a situation where the
respondent seeks to amend the pleadings by oral
evidence. We are
inclined to believe that the respondent’s attempt to oppose the
prayer for reinstatement is an afterthought.
Their position seems to
have all along been not to oppose it. Accordingly, respondent’s
application to lead oral evidence to
oppose the prayer for
reinstatement is refused. The prayer therefore stands unopposed as
such it is granted as prayed.

In
granting the prayer for reinstatement the following factors have been
taken into consideration: that the applicant has been
out of
employment for less than a year. In other words she acted promptly
soon after her dismissal. The respondent was infact
late in filing
its answer in about two months, thereby contributing to the delay in
finalising this matter. We further take into
account that the
respondent is a big company, operating both locally and in South
Africa. Infact we observe from the record that
applicant was
initially recruited in S.A. and was later relocated to one of the
branches of the respondent in Lesotho. Consequently
it is possible
for the applicant to be relocated away from the people she may have
clashed with thus making the possibility of
daily personal contact
avoidable. Finally we have taken into account that the respondent
has not opposed the prayer for reinstatement.
There is no order as
to costs.

THUS
DONE AT MASERU THIS 3RD DAY OF APRIL, 2001.

L.A
LETHOBANE

PRESIDENT

S.
MAKHASANE

MEMBER I
AGREE

C.
T. POOPA

MEMBER I
AGREE

FOR
APPLICANT : MR SELLO

FOR
RESPONDENT: MS SEPHOMOLO