LABOUR COURT OF LESOTHO
LESOTHO HIGHLANDS DEVELOPMENT
Employer discovering misconduct after notifying employee of
retrenchment Employer purporting to hold disciplinary
after effective date of retrenchment Employer purporting to
summarily dismiss employee after retrenchment Only
capable of being disciplined in terms of employers disciplinary
code Employer ordered to pay employee benefits
Separation Policy Employee demanding application of repealed
policy Employee not exhausting local remedies
dismissed 2/3 costs awarded to applicant.
1. The applicant filed these proceedings on the 25th
April 2006 seeking an order that:
The respondent be ordered to pay applicant leave and
severance pay in the sum of M263,265-35 and all his outstanding
benefits in accordance with the law.
The so-called disciplinary proceedings held by
respondent against the applicant is null and void.
The respondent pays the applicant special retrenchment
compensation in accordance with provisions of respondents Staff
Policy of 1998.
Payment of costs.
Further and alternative relief.
2. The applicant was employed by the respondent on the
1st July 1988 as a
permanent and pensionable employee. At the time of his termination
the applicant was the Acting Public Relations
Manager of the
respondent. On the 15th
November 2005 the applicant was served with a notice of termination
with effect from 31st
January 2006. The termination was said to be
due to the LHDAs
restructuring requirements. (See Annexure MR1
Originating Application). Applicant was promised to be paid his
separation package in accordance with the approved Separation
Policy and Procedure of 1st
3. On the evening of the 27th
January 2006 a farewell party was held for the applicant at Likileng
in the Butha-Buthe District. At around 21.00 hours that evening,
applicant was approached by the then Chief Executive of the
respondent Mr. Elias Liphapang Potloane, who handed him a notice
disciplinary hearing to answer certain charges on the 31st
January 2006. The charges were annexed to the notice of hearing.
4. On the 31st
January the applicant attended the hearing as stipulated. At the
hearing the applicant raised an objection that contrary to clause
27.4.11 of the respondents Human Resources Manual he had not been
given enough time to prepare his defence. The clause in question
stipulates that the notice containing the time and place of the
hearing must be communicated to the employee at least two working
days in advance.
5. While the applicant had been advised of the hearing
on the 27th
January, the notice was silent on the place and time of the hearing.
This necessitated that he be given a supplementary letter
sought to cure the deficiencies. The supplementary letter was dated
the 30th January
2005. The applicants objection that he had not been given
sufficient time to prepare was upheld, and the hearing
to the 8th
6. At the resumed hearing, which was on the 8th
and 9th February
2006, the panel was chaired by a different chairperson. No objection
was raised and in our view rightly so, because the
had not entered into the merits when it was postponed; save for the
accused employees plea. After the applicant
repeated his plea of
not guilty he is recorded at page 5 o the record of proceedings
(annexure LHDA3 to the Answer) to have
made the following
Ralejoe pointed out that he came to the hearing just to show respect
to the committee and out of courtesy for the employer,
but he felt
that LHDA no longer has authority over him since he is no more an
employee. He therefore wanted to find out from the
LHDA regulations stipulate in this regard.
response he got was that the misconduct and the hearing in respect
thereof started when he was an employee as such the hearing
proceed as the LHDA wanted to give him a fair hearing. He was
further given a choice whether he wanted to attend and that
event the hearing would continue regardless of his decision.
is worth noting that the response of the respondent says nothing
about the specific request of the applicant namely; what
regulations say about the situation where the accused person is no
longer an employee. It is common cause that the
applicant chose to
proceedings were conducted on the 8th
and the 9th
February 2006. On the 10th
February the committee found him guilty as charged and decided that
he be summarily dismissed with effect from 10/02/06. The
that finding was that applicant forfeited his statutory severance
pay in terms of section 79 (2) of the Labour Code
Order 1992 and
special retrenchment compensation in terms of clause 27.2.4(5) of
the LHDA Human Resources Manual.
10. The question that falls to be decided by this court
is whether the respondent could disciplinarily charge the
as its employee and also purport to dismiss him after the
31st January 2006.
The respondents view is that they had the right to discipline the
applicant because the applicant acquiesced
to the jurisdiction by
choosing to take part in the proceedings.
11. Acquiesce is defined by the Oxford Dictionary
as to agree especially tacitly. The second definition is to raise no
The conduct of the applicant does not fit into these
12 He expressly put it on record at the start of the
proceedings that he was only at the hearing as a show of respect not
he agreed that the respondent had any power to discipline
him. This attitude was again expressed at the close of the hearing
page 13 of 14 of the record of proceedings. He said the committee
should take into account the honour he had given to it by agreeing
come to the hearing even though he is no longer an employee.
Such a person cannot in our view be interpreted to have
13. Mr. Pheko for the respondent argued further that the
respondent sought to protect itself against similar acts in the
where employees would commit misconduct when they realized
that they were just a few days from retirement or termination for any
reason. Mr. Pheko was asked by a member of the court why the
respondent did not withdraw the letter of termination in order to
give itself time to apply its disciplinary code on the applicant. He
said this was an oversight.
14. Assuming that was the case, the question which the
applicant asked regarding what the respondents regulations said in
where an erstwhile employee has since ceased to be an
employee; ought to have reminded the respondents of the options open
Their response however pointed to a wrong understanding
that they can apply the personnel regulations even on former
as long as acts complained of occurred while the person was
still an employee.
15. The truth of the matter is that once a person ceases
to be an employee like was the case in casu, such a person can only
dealt with in terms of the ordinary commercial, contractual or
criminal laws of the country and no longer the labour laws. Mr.
Pheko was asked further whether for the month of February the
applicant was still afforded ordinary benefits that accrued to him
an employee. It turned out that this was not the case, because
everybodys understanding was that the applicants employment
came to an end on the 31st
16. In the case of Tsepo Tapeang .v. Huckster Home
Import and Export (Pty) Ltd LC66/05 (unreported) there was a dispute
the applicant had been reinstated to his job in accordance
with the award of the Directorate of Dispute Prevention and
(DDPR). It was found that the employer had written to the
applicant to come for a hearing to answer why he had not reported for
work on the date that it had been ordered that he should resume work.
The court concluded that that act of the employer amounted
reinstatement because there was no way that the employer could charge
and subsequently dismiss a non-employee. (See p.5 of
17. In casu the applicant was terminated by way of
retrenchment on the 31st
January 2006. He was not subsequently reemployed. There was
therefore no way in which the employer could purport to charge him
disciplinarily after the 31st
Whitehead .v. Woolworths (Pty) Ltd (1999) 20 ILJ 2133 at 2137
word employee was interpreted thus:
terms of the definition a person is an employee when such person
actually works for another person
In addition to working
another the employee must also receive or be entitled to receive
remuneration. The remuneration referred to must correspondingly
remuneration for work done or tendered to be done.
decisions lead this court to the conclusion that the question whether
the respondent can purport to disciplinarily charge
dismiss a person who has ceased to be an employee, must be answered
in the negative.
19. The fact that on the 8th
and 9th February
the applicant could no longer be subjected to the respondents
disciplinary process means that, he could not be found
misconduct on the 10th
February 2006. It means further that he could not be summarily
dismissed as the respondent purported to do on the 10th
February 2006. The applicant was infact retrenched on the 31st
January 2006 and he should have been paid his terminal benefits on
that date pursuant to section 84 of the Code. In other words
terminal benefits should have been paid on the last day of
20. The applicant further contended that his special
retrenchment compensation should be worked on the basis of the 1998
Policy as opposed to the 1st
November 2003 policy. The reason for this is that the 1998 policy
would entitle him to payment of two weeks wages for every completed
year of service calculated at 100% of Cost To Company (CTC) while
the 2003 one reviews it down to 60% of CTC. Applicant avers
60% of CTC is less favourable and that it was done without
consultation with him.
21. In ordinary administrative practice, there are no
parallel administrative policies. A latter policy always replaces
one unless a contrary intention is stated. Neither is an
employee entitled to choose which one policy is to apply to them and
which one will not. It is the prerogative of the employer to
determine an applicable policy. Where employees are unhappy, they
are entitled to challenge the offending policy through normal
procedures availed to them by the employers rules or regulations.
22. It is now approximately three years since the 2003
policy was adopted. There is no evidence that employees at any time
dissatisfaction with it. Applicant cannot therefore be
heard to belatedly challenge the applicability of the policy adopted
years ago when he failed to do so whilst he was an employee.
In other words he should have first exhausted the domestic remedies
before approaching the court.
23. The 2003 policy provides that it is reviewing
approved staff separation policy and procedure dated 16 December
We take it that this is only a discrepancy in dates but
the intention was to refer to the 27th
January 1998 policy, which is the one the applicant wants to be
applied to him.
24. If it is reviewing the previous policy it is in
effect changing it. In clause 3, the 2003 policy provides that the
shall apply to all employees of the LHDA excluding persons who
are not citizens of Lesotho
This clause makes it clear that
there is no room for choice. The 2003 policy applies to everybody.
For these reasons the applicants claim that he should be
in terms of the 1998 policy as opposed to the 2003 policy cannot
succeed. It is accordingly dismissed.
accordingly make the following order:
25.1 The disciplinary hearing held against the applicant
on the 8th, 9th
and 10th February
2006 are held null and void.
25.2 The respondent is directed to pay applicant his
terminal benefits in accordance with the contents of MR1 to
Application. Notice of Termination of Permanent
Employment Contract dated 15th
Given the extent of applicants success and failure in this
the applicant is awarded two thirds of the costs.
order in 2 above must be complied with within thirty days
the handing down of this award.
DONE AT MASERU THIS 12TH
DAY OF SEPTEMBER 2006
MATELA I CONCUR
TWALA I CONCUR
APPLICANT: MR. B. H. SEKONYELA
FOR RESPONDENT: MR. T. PHEKO OF LHDA LEGAL DIVISION
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law