LABOUR COURT OF LESOTHO
AND RESOLUTION 2ND RESPONDENT
of hearing: 06/11/06
Review Employers regulation requiring that an
employee qualifies for gratuity if he has served ten years The
falling short of ten years by four days Ten years not
achieved and the court cannot write off the unserved four days.
Documents referred to at arbitration not attached to
the record The omission not fatal In any event the arbitrator
reference to them a fact which shows he considered them in his
1. The applicant herein made a referral to the
Directorate of Disputes Prevention and Resolution (DDPR) in which he
sought an award
directing the first respondent to pay him his
gratuity in terms of its personnel regulations. The referral was
this review application.
2. The applicant was initially engaged to undergo a
sixteen (16) weeks training course in April, 1989. He was
successful in the
course and was offered a permanent but
non-pensionable appointment as a technician on the 18th
3. On the 14 July 1999 the applicant applied and was
granted voluntary severance effective from 21st
4. On the 24th
July 1999, the applicant wrote the following note to the Human
To: Human Resources
From: B.K. Moletsane
I had applied for voluntary severance whereby
it was approved with effect from 21st
of July, 1999 and my terminal benefits shall be forwarded on the 12th
August, 1999. This date is only four days away from my tenth
anniversary. I hereby make a formal request to the management to
please consider me for having completed ten years of service. I shall
appreciate your kindness.
Signed: B.K. Moletsane.
5. There is no evidence of any formal response to
this memo. It can however, be safely assumed that the request was
to; regard being had to the referral of a claim for the
payment of the gratuity to the DDPR.
6. Evidence regarding applicants entitlement or
non-entitlement to the gratuity was led before the DDPR. In
22.10.1 and 22.10.3 which were presented before the
arbitrator are worth quoting;
22.10.1. Gratuity shall be paid to employees
who have served LTC continuously for a minimum of ten (10) years only
at the time of
the termination of their employment with LTC.
22.10.3 LTC total contributions plus accrued
interest starting with the year when the employee joined
LTC but not earlier
than the year 1990 shall be paid on termination
7. At the hearing before the DDPR the applicant
testified that when he left LTC on the 12/08/1999, I had
completed ten (10)
years uninterrupted (service) and therefore (I
was) entitled to gratuity. When I opted for voluntary retirement my
ten (10) years
service was not taken into consideration which is why
I have lodged my case with DDPR. (See para 4 of the transcribed
8. The respondents version was that the applicant
had not served ten (10) years qualifying period because the other
he was undergoing induction did not qualify for
computation of gratuity. (See paragraphs 42 and 58 of the record).
9. After evaluation of the evidence the arbitrator
came to the conclusion that applicants period of permanent
not satisfy the minimum ten (10) years required for
one to qualify for gratuity. He found further that since the LTC had
exercised its discretion to consider the applicant to have
completed ten (10) years, applicants service period was
and therefore failed to qualify him for gratuity.
10. Applicant applied for the review and setting
aside of the aforesaid decision. There are essentially two grounds
that the applicant
advances for seeking that the decision of the DDPR
be reviewed. The third was raised from the bar.
11. Firstly, the applicant avers that the award
wrongly says he started to work for the first respondent on 3rd
April, 1983 when the correct date is the 10th
April, 1989. From paragraph 3 of the record of DDPR proceedings it
appears that the date of 3rd
April, 1983 was introduced by applicants own apparent slip of
the tongue. He is himself recorded to have suggested that date
the date that he started to work for the 1st
12. That this date is wrong is evident from
paragraphs 22 and 31 of the transcribed record of the DDPR
proceedings. In both those
paragraphs the applicant makes it clear
that he started to work for 1st
respondent in 1989. There is no clear date when he started but the
April was the date on which the induction course was scheduled to
13. There is no evidence that it infact started on
that date. In his own evidence under cross examination, before the
said the training started on the 16 April, 1989. It
is not disputed that the training period does not count for
entitlement to gratuity. It follows therefore, that the
error in dates has not prejudiced the applicant in as much as that
has not resulted in the reduction of his qualifying service
14. It is applicants second submission that his
service record was wrong. He accordingly sought the permission of
to patch up his service with his outstanding leave days.
He had been advised by the Human Resources Manager to follow that
as to seek to correct his record would take a long time.
15. According to the evidence which has not been
disputed only employees who have been continuously employed on a
for a least ten (10) years qualify for gratuity.
Evidence is further that applicant was offered permanent but
employment on the 18/08/1989. (See annexure BK
2). Clearly therefore his tenth anniversary would be attained on
16. It is common cause that the applicant applied
for and was granted voluntary termination with effect from 21st
July, 1999. Upon application for voluntary severance the applicant
made no mention about any outstanding leave and how he would
it towards satisfaction of the remaining few days to complete his ten
years of service.
17. Having made no mention of his leave, at the
time of tendering his application for voluntary separation, the
continued to fail to make any claim for outstanding
leave that is due to him. There is infact not an iota of evidence
that at the time that he retired applicant had any
18. In a surprising turn of events, the applicant
wrote an undated memo to the Human Resources Manager. The memo is
the founding affidavit of the applicant as annexure BK
4. In it the applicant recalls his application for voluntary
and that it is effective from 21st
July, 1999 even though his terminal benefits are to be paid on the
August, 1999. The applicant then makes a plea to the management to
please consider (him) for having completed ten years of service.
19. It is significant that even in this memo the
applicant makes no mention of leave. He instead is pleading with
use its discretion to write off the remaining few days
and consider him to have completed ten years of service. The
it would appear declined the request.
20. There is no suggestion that in declining to
consider him to have completed ten years the management was actuated
or that its decision should be declared void or illegal
for any recognized lawful cause.
21. Similarly no suggestion is made that the award
of the arbitrator is in any way assailable for failing to consider
placed before him or any other lawfully recognized
ground. By his own admission, the applicant fell short of the
years service by four days.
22. For him to claim that his service record was
wrong, is clearly a falsehood if regard is had to his admission that
fell short by four days. Those four days are clearly a
requirement which must be met. Neither the DDPR nor this court or
other court for that matter can read those days into his service
record when he did not serve them.
23. Finally, Mr. Mohaleroe for the applicant argued
from the bar that the review application should be granted and the
before the DDPR quashed for want of a proper record. He
had promised an authority for this proposition but until the time of
the writing of this judgment none had been availed.
24. The thrust of the argument was that the record
was not proper because a number of documents which were referred to
at the DDPR did not form part of the transcribed record.
Whilst this is so, the argument however does not go far enough.
25. It is not suggested, for instance that the DDPR
made a decision without seeing those documents that were referred to
it did not consider them. (See L. Baxter Administrative Law,
1996 Juta & Co., P. 259). Looking at the award of the
it is clear that he considered those documents and has
made extensive references drawn from them (the referred documents).
26. The fact alone that they were not attached to
the transcribed record is not in our view fatal. It is infact an
could very easily be cured by simply calling for those
documents to be transferred to the court by the DDPR if it became
to do so.
27. For these reasons we have come to the conclusion
that there is no merit in this application. It is accordingly
There is no order as to costs.
DONE AT MASERU THIS 11TH
DAY OF DECEMBER,2006
MOFELEHETSI I AGREE
MOTHEPU I AGREE
APPLICANT: MR MOHALEROE
RESPONDENT: MS TOHLANG
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