HELD AT MASERU
IN THE MATTER BETWEEN:
KHUTLANG MOHASOA 1ST APPLICANT
LEBOHANG THOBI 2ND APPLICANT
AND
MOTSEKI SEKANTSI T/A RESPONDENT
TIKOE GENERAL DEALER
Operational requirements DDPR referring dispute pursuant to sec. 226(1)(c) Applicants failing to prove retrenchment was unfair. Leave Applicants adducing no evidence they never took leave. Weekly rest days No evidence adduced that applicants never had rest days according to law. Evidence Applicants already had redress at Labour Department. Evidence Applicants lodged claim for similar benefits at labour and employer paid at Labour Department as ordered.
Evidence Applicants unhappy with amounts ordered fresh case filed with the court.
Application dismissed costs ordered de bonis propris against union as mark of displeasure.
The two applicants were employed by the respondent as shop assistant and manageress respectively. They were both terminated on the 31st May 2005, allegedly without notice. On the 27th June 2005 they referred a dispute concerning their termination to the Directorate of Dispute Prevention and Resolution (DDPR) claiming
unfair dismissal. The respondent pleaded that he had terminated the applicants for operational requirements as the state of his business had gone down. The DDPR then referred the matter to this court pursuant to section 226(1)(c).
On the 16th September 2005 the applicants issued an Originating Application out of the registry of this court claiming unfair dismissal and reinstatement alternatively compensation of ten months salary for the first applicant and seven months salary for the second applicant. They also claimed payment for leave earned and not taken and weekly rest days. Respondent answered the applicants claim essentially by admitting that he retrenched the applicants and that the applicants subsequently lodged a complaint with the Labour Department where the benefits due to them were computed. The respondent said he paid the said benefits in instalments starting 29th June 2005 and finished on the 27th December 2005.
At the hearing both applicants testified. The second applicant was the first to go into the witness box. She testified that they were dismissed verbally on the 31st May 2005, without being either charged or given the chance to defend themselves. She averred that the reason advanced was that the respondent no longer had funds to sustain their continued employment. Asked what it is that she asked from the court, she said she wanted the court to order payment of her sixteen days leave and sixty four rest days. Asked how she arrived at these days, she said she had worked for sixteen months with the respondent, and that since she was entitled to one days leave each month; she had accumulated a total of sixteen days. On the sixty four rest days she again said in the sixteen months she worked with the respondent she had been entitled to four rest days each month and she accordingly multiplied sixteen months by four days she was entitled to every month.
It must be said at this juncture that the evidence adduced to support PW1s claim is highly speculative. Nowhere does PW1 say that in the sixteen months she allegedly worked with the respondent she neither took leave nor was allowed to be off on her off days. It is left to the court to speculate that she never took days off in terms of the law and that she never took her leave. A litigant is obliged to adduce evidence that establish their claim and the court must not be left to speculate, let alone infer without evidence to that effect as to what rights applicant claims.
Under cross-examination she was asked to confirm that she was not dismissed for any misconduct and she did confirm. She was asked what hearing she sought to be given when she had committed no misconduct. It was further suggested to her that respondent told her and her co-applicant that the business climate had badly deteriorated hence their termination she agreed. This establishes without any doubt that the applicants were indeed terminated fairly for operational reasons.
It was put to PW1 that they were infact given a one month written notice of the termination which notice was to run from 01/06/05 to 30/06/05. She denied. She was presented with exhibits 1 which are the notices of termination for the two of them signed by their Chinese manager Mr. Chenjiosheng. She did not deny its knowledge. It was put to her that after the DDPR declined jurisdiction to arbitrate their case they took their claim to the Labour Department where their terminal benefits were computed and then paid by the respondent. She agreed. She further admitted getting certain payments from the Labour Department which she said was compensation for unfair dismissal. It is trite that nowhere in the computation of the benefits i.e. exhibit 3 is mention made of compensation for unfair dismissal which was to be paid to either of the two applicants.
PW1 further admitted getting paid other instalments and that it was promised that further payment would be made around November. PW1 was further asked with a confirmation of a certificate to that effect; that she was paid her final installment on the 27th December 2005. She again agreed. Exhibit 5 which PW1 saw and could not deny is a certificate of final payment of benefits to the two applicants made by the District Labour Officer dated 27th December 2005. Asked why she launched these proceedings when she had already been fully paid PW1 said she felt she had not been paid all her terminal benefits.
Now the applicant is entitled to feel whatever way she likes, but it must as much as possible be within the confines of the law. A litigant will not be permitted to throw a respondent from pillar to post and unjustifiably drag the respondent from one court to another (see Labour Commissioner .v. Frasers Lesotho (Pty) Ltd LC29/03 unreported) and M. Mahao & Others .v. Hotel Mafeteng (Pty) Ltd LC39/04 (unreported)). This is more so where the applicant has the benefit of union representation like is the case in casu. It is further more so where the applicants benefits have been worked out by a lawful institution specially created to deal with such matters.
The testimony of PW2 was that the respondent told him he could no longer afford to employ him. He stated his claim as being for eight leave days and twenty seven rest days. He also said he claimed compensation for unfair dismissal. Unlike PW1 he did not
substantiate why his termination should be found unfair in the circumstances. His basis for claiming eight days of leave was the
same as PW1. He relied on the fact that he had been employed by the respondent for eight months. But he did not adduce evidence to show that in those eight months he never took leave. Similarly the twenty seven rest days were based on the period he had been employed, multiplied by an assumed entitlement of four rest days each month. This again without direct evidence that the applicant never at any time took days off during his period of employment. On this basis alone the claims for leave, rest days and compensation for unfair dismissal are bound to fall away.
There is however another leg namely; that the applicants have already had adequate redress at the Labour Department. Counsel for the respondent took PW1 to task about the nature of termination. He disputed that they had been retrenched and insisted he had been unfairly dismissed. He denied that the respondent said he had no funds to pay them due to decline in business. This denial however, contradicted PW1 evidence that they were infact so informed. Again by denying that they were retrenched he was contradicting the DDPR which had itself found that they had been terminated for operational reasons and referred the determination of the fairness or otherwise of that retrenchment to this court. It is trite that both applicants failed to show the court how the unfairness of their termination came about. In any event PW1 is in agreement with DW1 that they were informed that they were going to be retrenched due to decline in the business.
PW2 was asked if it is true that after the DDPR declined jurisdiction they took their complaint to the Department of Labour. He agreed. He also agreed that they met with the respondent at the Labour Department. It was put to him that Labour Department officials
worked out his terminal benefits which included leave, notice, rest days and public holidays in accordance with his claim. He denied but later agreed that that was so. Asked if they (labour officials) told him how much he was to get, he again started by denying. After further probing PW2 finally conceded that he was told the amount he was to get but he was not happy with it. Asked what he did with his dissatisfaction he said he went to DDPR, but that was clearly false because they admittedly went to Labour after they had been to the DDPR.
It was put to him that after the terminal benefits were worked out the respondent made due payments at the Labour Department. He averred that he did not know. The receipts of payments made at Labour Department by the respondent were shown to him and all he could say was that he did not know. The court sought to find out from him if he ever followed up the claim he lodged with the Labour Department. His response was that he did not as he was busy with other engagements. This is clearly not a true reason why the witness did not follow up his claim. The more probable and plausible reason is the one he gave after he was cornered by Counsel for the respondent. That reason is that he was not happy with the amounts as worked out by the Labour Department.
If the applicant is unhappy with a decision of any tribunal or even an administrative body such as the Department of Labour, there are ways by which he can go about to get the decision of that body corrected. Review is the common law procedure for correcting decisions of administrative bodies if a subject is dissatisfied with such a decision. Forum shopping as applicants sought to do is certainly not the way to go about it.
After thoroughly thrashing the applicants under cross-examination Mr. Putsoane for the respondent called his only witness, the respondent
himself to confirm the documents and receipts of the Department of Labour and to formally hand them up in support of the respondents
case. DW1 testified that the two applicants were given written notices of their intended termination which was to run from 1st June to 30th June 2005. He averred that he showed applicants the letters and asked them to sign for them. He went on to say that applicants refused and said they would only sign in the presence of their union. He stated further that even though they had been required to serve their notice the two applicants deserted their jobs from the day they were notified of the pending termination and they never came back. The two letters of notice were handed in as exhibits 1 and 2.
DW1 testified further that he was subsequently called to the DDPR where the Arbitrator resolved to refer the dispute to this court as the reason for termination was found to be operational requirements of the employer. He further testified that from DDPR they went to the Labour Department where the applicants put their claim. The Labour Department calculated their benefits basing itself on what they claimed. He averred that the calculations were made in a document which he handed in and was marked exhibit 3. In terms of this document PW1s benefits amounted to M1,781-70. The figure was made up of payment for; notice, public holidays, leave days and severance pay. The benefits for PW2 totalled M925-64 and they were made up of payments for leave, notice, public holidays and weekly rest days. DW1 testified that the applicants were told of these amounts which they were to get, but they were not happy with them. This is consistent with applicants own evidence that they were not happy with the amounts they were to get. DW1 testified further that due to the downturn in the business he could not afford to pay the amounts in full at once. He paid these amounts in instalments starting on the 29th June 2005 and the final payment was made on the 27th December 2005. He handed in receipts evidencing said payment at Labour Department on 29th June 2005, 16th August 2005 and 10th October 2005. these were collectively marked exhibit 4. He also handed in a certificate of final payment dated 27th December and it was marked exhibit 5.
The evidence of the respondent clearly shows that the two applicants have long got redress on the claims before this court. This is quite apart from the fact that on their own evidence the applicants had failed to prove their claim before this court. Assuming they had been able to prove their claim, they were clearly seeking to be redressed twice on exactly the same claim. Counsel for the respondent adequately presented the respondents case to applicants namely; that they have been paid. While one conceded the other sought to deny in circumstances where it was clear that he was not telling the truth.
It is our view that the respondent could have put an end to these proceedings through a plea of resjudicata. Perhaps he did not do so because the fairness or otherwise of the retrenchment had not yet been determined. However, before this court it can safely be said that applicants abandoned the claim for unfair retrenchment because in the case of PW1 she conceded that they were told about the downturn in the business prior to termination. This was consistent with DW1s testimony who in answer to a question whether he charged the two applicants, said, no I administratively informed them of the state of the business as they could also see that I could not afford to continue to pay them.
The first applicant (PW2) defeated his case of unfair retrenchment because he sought to establish a case of unfair dismissal. He
refused squarely that he was retrenched and yet his case before this court which the respondent had come to answer was one of unfair
retrenchment even if it may not have been as elegantly put. It would have been wise for the union to have either asked for stay of these proceedings to verify the alleged payments concerning terminal benefits or withdrawn the proceedings altogether as there was sufficient proof during cross-examination already that what the applicants claim have been paid. However, both the union representative and the applicants especially PW2 insisted on further payments even when he was asked if he sought a second payment for the same claim that has already been settled at the Labour Department. This conduct cannot be countenanced. For these reasons this application is dismissed with costs on attorney and own client scale which costs must be paid de bonis propris by the union.
THUS DONE AT MASERU THIS 22ND DAY OF MARCH, 2006
L. A. LETHOBANE
L. MATELA I CONCUR
R. MOTHEPU
MEMBER I CONCUR
FOR APPLICANTS: TSAWU
FOR RESPONDENT: MR. PUTSOANE
