IN THE
LABOUR COURT OF LESOTHO

LC/15/04

HELD AT
MASERU

IN THE
MATTER BETWEEN

TIISETSO
SARELE APPLICANT

AND

JUN WEI
WANG 1^ST
RESPONDENT

CHINA STATE CONSTRUCTION 2^ND
RESPONDENT

JUDGMENT

21/07/05

Contempt
– Respondents failing to reinstate applicant per DDPR award –
Evidence – Applicant never presented himself to 1^st
respondent – Latter therefore not in contempt – Applicant
presented himself to a manager who never informed 1^st
respondent – 2^nd
respondent liable for omissions of its servants therefore guilty of
contempt.

2^nd
respondent incapable of physical detention – a fine imposed.

Time
lapse – reinstatement no longer feasible – reinstatement varied
and compensation ordered.

This is a
case of contempt of court in that the respondents have failed to
abide by the award of the Directorate of Dispute Prevention
and
Resolution (DDPR) to reinstate the applicant. The applicant had
lodged a referral of unfair dismissal with the DDPR on the
9^th
July 2003. The DDPR made an award directing the respondents to
reinstate the applicant by the 1^st
August 2003.

Applicant
avers that he reported to a Mr. Serobayane who is the Human Resources
Manager on the 29^th
August 2003, but was not reinstated as ordered. He avers further
that he again met with Mr. Serobanyane on the 13^th
August 2003 and the latter told him that there was nothing he could
do if his bosses were not responding to the award. Thereafter
he met
with one Loma on the 15^th
October and the 15^th
November 2003. The said Loma was applicant’s supervisor and he
allegedly promised that they were in the process of purchasing
a new
truck which applicant would be assigned to drive. Nothing turned on
this promise. On the 3^rd
December he went back to the DDPR which told him that it had sent the
award to the respondents by fax. He then proceeded to this
court to
launch contempt proceedings as respondents had failed to comply with
the order to reinstate him.

In
cross-examination the applicant was asked who the manager of second
respondent is. He said it is the first respondent. He confirmed

that Mr. Wang is the one who is in charge of the affairs of the
second respondent. Asked if he ever reported himself to Wang for
the
purpose of effecting the award he said he did not. Asked if he could
deny Mr. Wang’s evidence that he knew of the award
that directed
him to reinstate the applicant but he has never seen him (the
applicant) for the purpose of reinstatement, he said
he would not
deny it.

The Human
Resources Manager of 2nd respondent gave evidence in which he made a
bare denial that he ever met with the applicant.
He said that they
expected to see applicant on the 1^st
August 2003 because the award said he should be reinstated on that
date but he did not show up. DW1’s testimony is highly suspect.

It sought to convey the message that applicant was expected at the
respondent on the 1^st
August because that was the date he should have been reinstated. He
however does not deny applicant’s testimony that he was
there on
the 29^th July
2003. Clearly DW1 has misread the award. What it says is that
applicant should be reinstated by the 1^st
August 2003. What this means is that he could be reinstated on any
date from the date of the award which is 9^th
July 2003 but not later than the 1^st
August 2003. It follows that the applicant was right to have
presented himself on the 29^th
July 2003.

The first
respondent has since left Lesotho and gone back to China. He however
has deposed to an affidavit in which he denies that
the applicant
ever reported for resumption of duty. We now know that this version
is only partly true in that the applicant never
reported to the first
respondent personally. He however reported to Mr. Serobanyane on the
29^th July 2003.
Mr. Serobanyane is the servant of the respondents. His omissions
bind the respondents. Infact the applicant stated
that Mr.
Serobanyane was a link between them (the staff) and the management.
It was therefore Mr. Serobanyne’s duty to have
informed the first
respondent of the applicant’s presence. His failure to do so can
only exonerate the first respondent, Mr.
Wang but not the second
respondent. The latter is indeed guilty of contempt as charged due
to the failure of its servant, Mr.
Serobanyne to inform them that
applicant did report for work on the 29^th
July 2003.

AWARD

It is now
three years since the applicant was dismissed. The contempt
proceedings were conducted on the 21^st
July 2005 and judgment was reserved. For some strange reason the
file disappeared from the desk of the presiding officer as a
result
judgment remained pending until Monday 26^th
June 2006 when this anomaly was brought to my attention. It is clear
therefore that too much water has passed under the bridge
since
applicant’s dismissal and since the finalization of the contempt
proceedings.

In as much
as the company is indeed guilty of contempt the person charged with
it is not guilty. Furthermore, the 2^nd
respondent is an incorporeal entity incapable of physical
apprehension let alone detention. The only way to punish it for its

criminal wrong is through its servants of sufficiently high standing
to answer for its actions. None of those in the position
high enough
to be held liable are capable of being held so liable because
applicant never personally presented himself to them
for
reinstatement per the DDPR award. It follows that the remedy lies in
the imposition of a fine.

Against
the backdrop of the remarks made in this judgment we make the
following order.

1. 
   In the light of the time lapse since the applicant’s
   dismissal the reinstatement order of the DDPR is varied and an order
   of
   compensation for the unfair dismissal made as follows:

   
   
   
   

   1. 
      The respondent shall pay applicant compensation for
      unfair dismissal in the amount equivalent to twelve months salary,
      being
      the period from 1^st
      August 2003 to 31^st
      July 2005. This period represents the time span from the time
      applicant should have been reinstated and the time the contempt

      proceedings judgment should have been handed down.

      
      

   2. 
      The compensation shall be calculated on the basis of
      the salary applicant would have earned during the relevant period
      if he
      had continued in employment.

      
      
   
   

2. 
   Furthermore the 2^nd
   respondent shall in terms of section 24(1)(P) of the Labour Code
   Order 1992 as amended read with section 239 of the same order
   pay a
   fine of M600-00 to the government to purge its contempt.

   
   
   
   

   1. 
      Both the compensation and the fine shall be payable
      within 30 days of the handing down of this award, save that the
      fine shall
      be payable to the Accounts Section of the Department of
      Labour.

      
      

   2. 
      Since the 1^st
      respondent has since left Lesotho the person who has taken his
      place or in his absence any next person in authority shall ensure

      that these orders are complied with failing which they shall be
      personally liable for imprisonment; in the case of failure
      to pay
      compensation for a period of six months and in the event of failure
      to pay the fine, imprisonment for three months.

      
      
   
   

THUS
DONE AT MASERU THIS 30^TH
DAY OF JUNE 2006

L.
A. LETHOBANE

PRESIDENT

M.
MOSEHLE I CONCUR

MEMBER

A.T.
KOLOBE I CONCUR

MEMBER

FOR
APPLICANT: MR. SEMULI OF TSAWU

FOR
RESPONDENTS: MS. THABANE