THE LABOUR COURT OF LESOTHO
NO LC 119/00
THE MATTER OF:
LESOTHO LTD. RESPONDENT
the morning of 23rd
September 2000, the applicant had been receiving goods at
respondents receiving section. The first he attended was a
Bakery truck. He received from them 48 loaves of brown bread
and 24 loaves of white bread. This was indeed the respondents
order from that supplier on that day. Later Mr. Motsamai, the
Manager conducted a spot check. He discovered that despite the
applicant having received bread in the quantities herein before
mentioned, the invoice showed the bread received as 72 brown loaves
and 48 white loaves, an increase of 24 loaves for both brown and
Manager sent applicant a security guard to call back the truck. When
the truck arrived he asked the crew how much bread they
off-loaded. The driver said he offloaded 72 brown and 48 white
loaves, while driver maid said he offloaded 48 brown and 24
loaves. They offered to offload the remaining 24 brown and white
loaves, but Mr. Motsamai declined the offer. The applicant
subsequently charged with failure to look after the assets,
merchandise and cash of the company. He was found guilty and was
dismissed. The applicant lodged an appeal in accordance with the
appeal procedures of the respondent. He was not successful.
then sought relief from this court in the following terms:
the respondents decision of 6 July 2000 to dismiss applicant be
reviewed, corrected and declared null and void.
decision is inconsistent with the rules and unnecessarily too severe
given the fact that applicant was a first offender.
of the applicant.
of salary with effect from date of dismissal to date of judgment.
and/or alternative relief.
his argument before court Mr. Thamae for the applicant submitted that
the evidence on which the applicant was found guilty was
contradictory. He advanced this argument without elaborating on
which aspects of the evidence were contradictory. When he was
by the court to show ho the evidence was contradictory, he chose to
withdraw the argument.
Thamae argued further that the applicant had not been given the
chance to improve by using the system of progressive discipline.
Whilst the respondents Grievance, Disciplinary and Appeal
Procedures recognize that an employee may initially be reprimanded,
given warnings and be discharged if the first two steps fail, the
Code is clear that the application of these steps will depend
circumstances of each case when it is considered against the specific
types of offences listed in the Code. Now according
to the Code, the
offence with which the applicant was charged carries the penalty of
summary dismissal for the first offence, if
the offence is considered
serious. If the offence is considered minor the penalty for the
first offence is final warning.
Thamae argued that the offence with which the applicant was charged
was minor and therefore he ought to have been given a final
warning. He relied on the statement by the chairman of the initial
enquiry where in considering aggravating circumstances
he had said
stock shortages build up from such petty offence and short
receivings. If the offence was indeed petty as Mr.
want us believe, such would not be stated as an aggravating
circumstance. It would certainly come as a mitigating
It seems to us that the presiding officer was a victim of careless
use of words; but he clearly was not intending
to say the offence
with which applicant was charged was petty. We are fortified in the
view that we hold in this regard by the
Disciplinary and Appeal Procedure which states at page 1 paragraph 6
Employees have a particular responsibility to protect the assets of
the company such as merchandise and cash from shrinkage or
damage. The company considers shrinkages and damage to assets as
extremely serious and will take stick disciplinary measures,
including dismissal where they arise.
It should be
borne in mind that the applicant had short received goods by a
significant number of loaves. This could have serious
implications for the respondent as the applicant could well have been
running his private business with goods bought
at the respondents
expense in this manner. That could not by any stretch of the
imagination be said to be a minor offence.
But when assuming that
the chairman of the original inquiry had indeed intended to classify
the applicants offence as petty,
he was clearly overruled by the
chairman of the board of appeal who made it very clear that the
offence was serious.
Thamae argued further that the applicant had infact attempted to
rectify his wrong doing, but because the manager was bent on
dismissing him he did not allow him to do so. Firstly, there is no
evidence whatsoever that the manager was sent on dismissing
applicant. Secondly, applicant was caught red handed. If it was not
for the astuteness of the manager, the respondent had already
successfully defrauded. This was fitting case for applicant to be
disciplined irrespective of whether he returned what he
the respondent with. May be that could be a mitigating factor, but
not a bar to disciplinary action against him.
was contended further on behalf of the applicant that he was a first
offender and that he had indicated that he had no training
receiving. Evidence let at the hearing which at the start of this
proceeding was by consent of both counsel admitted as common
was that the applicant had on two immediately preceding days short
received bread and the difference had not been paid to
respondent. The days in question were the 21st
June 2000. Regarding training the respondent established at the
disciplinary hearing that the applicant had been doing the job
five years. He could not after so many years doing the same job
without significant irregularities hide behind lack of training
the reason for the default. Secondly, the default had occurred on
three successive days which show a clear pattern which cannot
mistaken for lack of training. Finally, applicant was a supervisor,
whom it can reasonably be deduced that he reached that
of recognised competence in his work. For these reasons we are of
the view that there is no merit in this application.
accordingly dismissed with costs.
DONE AT MASERU THIS 8TH DAY MARCH, 2002.
APPLICANT : MR THAMAE OF NURAW
RESPONDENT: MS SEPHOMOLO
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