IN
THE LABOUR COURT OF LESOTHO

LC 15/06

HELD AT MASERU

IN THE MATTER
BETWEEN:

RAMPOETSI
TJELOANE APPLICANT

AND

HIGHLANDS SECURITY (PTY) LTD RESPONDENT

JUDGMENT

Dates:
12/04/06

Retrenchment – No consultation. Respondent
conceding procedural impropriety. Reinstatement – not suitable
remedy – compensation
awarded.

Set-off – boss of gun and two way radio – cost or
value of stolen items not proved – set off refused.

The
applicant was employed by the respondent as a security guard on the
15^th December
2001. He was assigned to guard a supermarket store at Tsenola in
Maseru. He was issued with a pump action shot gun and
a two way
radio. On the night of 1^st
June 2005 he was attacked by unknown assailants who took away the
firearm and the two way radio. The two items have never been

recovered todate and the attackers have never been arrested.

On
the 7^th June the
applicant was written a letter in which he was informed that he would
be surcharged for the loss of the two items which
were jointly valued
at M6,200-00. He was to be surcharged at the rate of M250-00 per
month until the full amount had been recovered.
It does not look
like the surcharge was effected. However, on the 24^th
October 2005 applicant was served with a letter of dismissal. The
reason given was operational requirements. He was promised
to be
paid his terminal benefits and reminded that he still owed the
company the M6200.00. Mr. Makutle is the Operations Manager
of the
respondent. He testified that after the theft of the gun and the two
way radio from applicant, the company no longer trusted
him. It
could not entrust him with yet another gun, as such they could not
deploy him. This is why they terminated him on the
ground of
operational requirements.

Transport,
Security and Allied Workers (TSAW) of which applicant is a member
wrote a letter to the respondent challenging the procedure
followed
in retrenching applicant. There is no evidence of respondent’s
response to that letter. On the 27^th
February the applicant filed the present application contending that
the retrenchment is procedurally flawed in as much as there
was no
consultation with the applicant and alternatives to retrenchment were
not considered. The applicant claimed reinstatement
or payment of
compensation as well as terminal benefits in the form of notice pay,
leave pay, public holidays and severance pay
totaling M3,449-64.

The
respondent conceded that the applicant’s retrenchment was
unprocedural. They however pleaded that they could not reinstate
the
applicant. The reason which they gave was that they could not trust
applicant anymore and that they could not allocate him
duties which
require the use of a gun due to the mistrust. They pleaded that the
court awards applicant reasonable compensation
in the circumstances.
They further prayed that the court grant them a set off of the amount
that the court will grant the applicant
as compensation for the loss
of the firearm and the two way radio.

We
have considered that the respondent has made the work of the court
relatively easy by not disputing the obvious. We have taken
into
account that the respondent is a relatively small organisation, as
such its operational capability must be taken into account.
For
these reasons we have come to the conclusion that reinstatement is
not a suitable remedy regard being had to the size of the

organisation and the reason given for the termination of the
applicant. In a security business trust is of utmost importance.
We
have thus decided to award applicant payment of three months wages as
compensation for the unfair retrenchment. This will
add up to
M2,802-00 plus the undisputed M3,449-64 of the terminal benefits.
The total amount payable to the applicant is M6,251-64.

The
respondent contend that the amount of loss occasioned by the
disappearance of a firearm and the two way radio be set off from
the
amount that the court finds due to the applicant. Mr. Makutle who
testified for the respondent justified the claim of set
off by saying
that the company did not believe the explanation of the applicant.
Mr. Mahlehle who represented the applicant asked
Mr. Makutle under
cross-examination what action the company took, he said they reported
the loss to the police. He asked him if
any disciplinary action was
taken against applicant he said none was taken. He asked him why
applicant was not surcharged in accordance
with the letter of 7^th
June 2005 which informed applicant of such a surcharge. He said it
was because of the discussion which the Directors of which
he is not
a part had.

In
our view these questions are very pertinent. It is not enough that
the employer has a feeling of dissatisfaction about the employee’s

explanation. The employer must initiate the procedures for
substantiating his suspicions. In this connection disciplinary
proceedings
would go a long way in helping to either vindicate the
applicant or confirm the employer’s suspicions. Furthermore, Mr.
Makutle’s
own testimony is that the Directors overruled him when he
had wanted to surcharge applicant. There is no evidence that the
Directors
have authorized them to seek the set off. Probabilities
are that the Directors are not interested as they have previously
prevented
a surcharge from being effected.

Finally,
the figures of M3,200-00 for the shot gun and M3,000-00 for the two
way radio are not substantiated. From the very beginning
the
respondent has been alleging the aforesaid amounts without any
scintilla of evidence to corroborate the amounts. The court
did ask
Mr. Makutle to produce evidence in the form of for instance the
receipts for the purchase of the lost items. He answered
that he has
the receipts at the office but to this day they have not been
produced. This leads to an irresistible inference that
the claimed
amounts are imaginary. Mr. Mohaleroe sought to address this gap in
their evidence by saying that the applicant has
never disputed or
queried the amounts. Whilst it is true that there is no indication
of applicant queering the amounts, it does
not absolve the respondent
of the onus that lies on them to prove their claim. For these
reasons the set-off applied for cannot
be granted. Accordingly, the
respondent shall pay the applicant the amount of M6,251-64 in full
and final settlement of this matter
no later than 26^th
May 2006.

THUS
DONE AT MASERU THIS 25^TH
DAY OF APRIL, 2006

L. A. LETHOBANE

PRESIDENT

J.M.
TAU I CONCUR

MEMBER

M.
MOSEHLE

MEMBER I
CONCUR

FOR
APPLICANT: MR. MAHLEHLE

of
TSAW

FOR
RESPONDENT: MR. MOHALEROE