IN
THE LABOUR COURT OF LESOTHO

LC/01/06

HELD
AT MASERU

IN
THE MATTER BETWEEN

LABOUR
COMMISSIONER APPLICANT

AND

MATHABO
McCLOY & ASSOCIATES

(PTY)
LTD RESPONDENT

JUDGMENT

Dates
of hearing: 06/04/06, 05/07/06, 13/09/06, 27/09/06, 28/09/06.

Jurisdiction
– continuance – if ground upon which jurisdiction was established
at time of trial ceases to exist the jurisdiction
will continue to
exist as long as it existed at the commencement of the trial.

Resignation
– Notice to be communicated directly to employer or employee or
their authorized agents – Notice tendered by complainants

ineffective. Leave – employees tendering leave days as notice –
Onus not discharged how many leave days were due – Leave
– Sec.
120(1) of the Code – Leave can only be taken with agreement between
employer and employee- Unilateral tender of leave
to serve as notice
inappropriate – claims for leave and severance pay dismissed.

Deduction
from wages – sec. Deduction from wages – Employer acting
arbitrarily without investigating how much each employee
owed. Sec.
85(3) – employer may not taken more than one third of employee’s
monthly wages without approval of Labour Commissioner
– Money
allegedly repaid by complainants to employer to be returned to them

1. 
   INTRODUCTION

   
   

1. 
   In this matter the
   Labour Commissioner is suing in terms of section 16(b) of the
   Labour Code Order 1992 (the Code) which provides
   that:

   
   

“For
the purpose of enforcing or administering the provisions of the Code
a labour officer may:-

“(a)
……………

“(b)
institute and carry on civil proceedings on behalf of any employee
or the employee’s family or representative against any
employer in
respect of any matter or thing or cause of action arising in
connection with the employment of such employee or the
termination of
such employment.”

These
proceedings have been filed on behalf of three former employees of
the respondent who are seeking payment of certain benefits
following
their resignation from the employ of the respondent.

2. 
   The Labour commissioner
   filed this application with this court pursuant to a certificate
   issued by Arbitrator Rantsane on the
   22^nd
   November 2005 referring the dispute for adjudication by this court
   as some of the claims fell under the exclusive jurisdiction
   of
   this court viz severance pay. I do not wish to belabour the
   question whether the referral of the dispute to this court
   was
   properly conceived. Suffice it to say that both parties accepted
   the referral and proceeded to file pleadings in terms
   of the rules
   of this court.

   
   

3. 
   It is common cause that
   the dispute was filed on 8th February 2006. Thereafter the trial
   was set down and was duly conducted
   on a number of days with
   evidence led on both sides. The trial ended on the 28^th
   September 2006, when counsel for both parties presented their
   closing arguments.

   
   

4. 
   Unbeknown to both
   counsels, Parliament had since passed a new Labour Code (Amendment)
   Act No.5 of 2006, which makes all claims
   for non-payment of any
   monies due under the provisions of the Code as amendment subject to
   determination by arbitration. In
   essence therefore on the last day
   of the conducting of this trial this court no longer had the
   jurisdiction to determine the
   claims which it is being called upon
   to decide in this matter.

   
   

5. 
   In his book Pollack on
   jurisdiction; Juta & Co. 2^nd
   Ed. David Pistorius relying on old writers like Voet; advances the
   principle of “Continuance” which advocates that jurisdiction

   must exist at the time of the commencement of the action. The
   learned author goes further to submit that;

   
   

“jurisdiction
having once been established at that time, it continues to exist to
the end of the action or proceedings even
though the ground upon which the jurisdiction was established ceases
to exit.”
(emphasis
added).

6. 
   This principle is in
   clear contrast to the principle propounded by the case of Curtis
   .v. Johannesburg Municipality 1906 TS
   308 where Innes CJ as he then
   was stated that:

   
   

“Every
law regulating procedure must, in the absence of express provisions
to the contrary, necessarily govern, so far as is applicable
the
procedure in every suit which
comes to trial after its promulgation.”
(emphasis
added).

This
decision was cited with approval in the case of Attorney General and
2 others .v. S.J. Kao C. of A (CIV) No. 26 of 2002 (unreported).

1.7 The emphasized
phrases in the quote from Pollack on jurisdiction and the quote
from the decision of Innes C.J. provide a
clear demarcation line. On
the basis of the principle of continuance, this court continues to be
properly seized with the jurisdiction
to hear the claims despite the
change in the law. The difference would arise if the trial commenced
after the adoption of the
new amendment; which now places the
jurisdiction to determine claims which we are dealing with now, in
the DDPR. Since the change
came after the trial commenced; this
court is enjoined to deal with the claims to the end. As the learned
author states in Pollack
on jurisdiction at p.13;

“This
principle of continuance has been held to follow from practical
considerations because the due administration of justice would
be
seriously hampered if the rule were otherwise.”

1.8 The learned author
states further down the middle of the same page that “it would be
impossible to administer justice were
this not so.”

2. 
   APPLICANTS’ CASE

   
   

1. 
   It is common cause that
   the three complainants resigned from the employ of the respondent
   on the 5 August 2005. According to
   PW1 ‘Matsoanelo Thene, she
   was employed as an Administrator. In that position she was
   responsible for staff matters and
   answerable to the Managing
   Director Mrs. Mathabo McCloy about those matters.

   
   

2. 
   She averred that she
   never took leave. Since she could in terms of section 25(2) of the
   Code only claim up to three years backwards,
   she concluded that she
   had thirty-six accrued annual leave days. She then decided to
   tender some of those annual leave days
   as notice.

   
   

3. 
   On the 5^th
   August 2005 she wrote a letter of resignation tendering thirty of
   her perceived thirty-six accrued leave days as notice. The
   notice
   was to run up to the 4^th
   September 2005. She averred that this meant that she was left with
   a balance of six leave days.

   
   

4. 
   PW1 testified further
   that at the end of July 2005 the respondent made a deduction of
   M1000-00 from her salary which she claims
   was unlawful. She
   averred that the deduction was said to be for the misuse of office
   telephone between 2003 and July 2005.

   
   

5. 
   The witness claimed
   payment of six outstanding leave days; refund of the M1000-00 which
   she says was an arbitrary deduction
   in as much as the calls that
   she allegedly made were not identified. Finally the witness
   claimed payment of severance pay
   for the period that she had worked
   with the respondent.

   
   

6. 
   PW2 was Malerato
   Nyakane, who did front desk work and finances. She had also
   resigned on the 5^th
   July 2005 tendering thirty of what she considered to be her thirty
   six accrued leave as notice. That meant that she also remained

   with six days standing to her credit, which she claimed.

   
   

7. 
   She also claimed
   severance pay and M1500-00 which she avers was unlawfully deducted
   from her July salary as repayment for alleged
   misuse of the office
   telephone between 2003 and July 2005.

   
   

8. 
   PW3 was Mr. Molibetsane
   Nyakane. He had also tendered thirty of what he considered his
   thirty six accrued leave days as notice
   and remained with six days
   which he is claiming in these proceedings. He also claimed
   severance pay and M660-00 which he said
   was deducted from his July
   salary in circumstances similar to those of PW1 and PW2.

   
   

3. 
   RESPONDENTS’ CASE

   
   

1. 
   The respondent denies
   that the complainants are entitled to any of the claims they are
   making. DW1 Mrs. Mathabo McCloy testified
   that, the three
   complainants are not entitled to severance pay because of the
   manner that they left employment.

   
   

2. 
   She averred that she
   had come to work at around 10.00 am on Monday 8^th
   July 2005, only to find the offices of the three complainants
   empty. She even had to ask the staff members who were there
   if it
   was already lunch.

   
   

3. 
   It was then that she
   was told that a letter had been given to the office driver the
   previous Friday to give to her. Upon enquiry
   from the driver, the
   latter confirmed that he had taken a letter to her house which he
   had handed to the maid. Coincidentally
   the maid had taken a weekend
   off and was only going to return that Monday.

   
   

4. 
   The driver was sent
   back to the house to look where the maid would possibly have put
   the letter. He came with the envelope
   which contained three
   letters from the three complainants tendering resignation in
   identical terms. She averred that she was
   surprised because she
   had been talking to PW3 up to abut 4.00 pm the previous Friday and
   he had not hinted his intention to
   resign. She averred that the
   manner of the three complainants’ departure had caused her
   company great loss.

   
   

5. 
   With regard to leave
   DW1 said as a small office they had found it convenient to close
   during the Christmas/new year festive
   season so that all staff
   could proceed on leave at the same time. In this regard she was
   gainsaid by DW2 Itumeleng Nkhelooane
   and PW3, who both agreed that
   the office used to close around the 20^th
   of December and reopened during the second week of January the
   following year.

   
   

6. 
   DW1 averred further
   that even during the year people who needed leave could ask for
   days off. She stated that PW1 was one to
   whom requests for leave
   would be communicated and she was not aware of any person who was
   refused leave. She was again supported
   by DW2 who said they were a
   very small office and she would have known if anyone in the office
   had been refused leave. She
   averred that to her knowledge no one
   was ever refused leave.

   
   

7. 
   Indeed even none of the
   three complainants testified about any one of them being refused to
   go on leave. PW1 said leave was
   once refused to Itumeleng and PW3
   some three years prior to their resignation. But none of those two
   could confirm that they
   were ever denied to go on leave. It was
   put to PW2 that PW1 never singled her out as having been refused
   leave at anytime.
   Asked what her comment would be, she said she
   had nothing to say.

   
   

8. 
   As regards the alleged
   unlawful deduction, DW1 said she was infact paid back by the staff
   for having misused the office telephone.
   She averred that she had
   enquired from PW1 and PW2 who were responsible for controlling the
   use of telephone in the office.
   The control measure was that a
   telephone call had to be requested from PW1 who would authorize it
   upon verifying that it was
   an official call by seeing the file in
   respect of which the call was going to be made. PW2 would then
   release the telephone
   to the staff member in question. She (PW2)
   had a notebook in which she would record if the call was private or
   official.

   
   

9. 
   When DW1 enquired why
   the bill for the telephone was rising, she then learned that the
   control measure as herein outline was
   overridden since 2003. Staff
   were making calls without going through PW1 and PW2 was no longer
   recording the calls. She was
   however, informed that staff were
   making official as well as private calls freely without using the
   controls that were put
   in place. She then instructed that staff
   divide the cumulative bills from 2003 to June 2005 equally among
   themselves and the
   office as an additional member; and each must
   pay back to her their share of the distribution. She averred that
   the staff
   had met on their own and agreed on what they would each
   pay back for the misused telephone.

   
   

4. 
   CONCLUSION

   
   

1. 
   NOTICES OF
   RESIGNATIONS & SEVERANCE PAY

   
   

2. 
   The success of the
   claims for severance pay depend largely on whether the resignations
   of the complainants were lawful. All
   the complainants conceded
   under cross-examination that they were advised by the office of the
   applicant to resign as they did
   and claim the benefits that they
   are claiming. Naturally therefore, the applicant’s contention is
   that the resignations
   were lawful.

   
   

3. 
   Each of the three
   complainants give a different reason why they resigned. What is
   clear from the issues raised under cross-examination
   is that, all
   the three complainants resigned in consequence of an advise they
   got from the office of the applicant where they
   had gone to report
   their dissatisfaction about the money the Managing Director had
   directed that they each pay back to the
   company.

   
   

4. 
   In terms of section 63
   of the Code “either party may terminate the contract (without
   reference to limit of time) upon giving
   one month’s notice (if
   the employee had been continuously employed for one year or more.)”
   There is no dispute that the
   three complainants had been
   continuously employed for more than one year.

   
   

5. 
   In the case of
   Transport & Allied Workers Union and Others .v. Natal
   Cooperative Tiber Ltd (1992) 13 ILJ 1154 at 1160, the
   court
   restated the principle of effective and lawful notice thus:

   
   

“….notice
of termination of a contract of employment, in order to be effective,
must be communicated to the employee, and must be
given to the
employee personally unless he has appointed an agent with authority
to receive such notice on his behalf.”

This
rule was reiterated in Honono .v. Williwvale Bantu School Board &
Another (1961)(4) SA 408 at 414 H.

6. 
   The same principle
   should apply where the employee terminate their employment.
   Invariably however, employers do have authorised
   agents to whom the
   notice of termination would be communicated. In hoc casu PW1 was
   one such person. It follows therefore,
   that PW2 and PW3 had
   correctly communicated their resignation to PW1 for onward
   transmission to DW1. On the other hand PW1
   could only communicate
   her resignation including that of PW2 and PW3 to DW1 to whom she
   was responsible for staff matters.

   
   

7. 
   In our view therefore,
   it was not proper for PW1 to have communicated her resignation to
   the office driver who has not been
   shown in evidence to be the
   agent of the employer in respect of such matters. PW1’s notice
   of resignation was therefore
   faulty in this regard

   
   

5. 
   LEAVE

   
   

1. 
   Evidence has shown that
   the office of the respondent used to close in December for
   employers to take their leave during the
   festive season. Ms. Ntene
   for the applicant, sought to argue that the leave was not official
   leave because no forms were filled
   to authenticate it as such. Now
   that is elevating form over substance.

   
   

2. 
   Whilst, the employer
   may be taken to task under other parts of the Code for failing to
   keep proper records, the undenied fact
   that the employees used to
   take days off during the festive season cannot be glossed over.
   Indeed PW3 did concede that their
   leave was utilized during the
   festive season. At the sametime PW1 who was responsible for
   administering staff leave could
   not even say that any one of them
   was refused leave in the preceding three years, which would justify
   the leave allegedly owed
   to them.

   
   

3. 
   It goes without saying
   therefore, that it was wrong for the three complainants to have
   concluded that in the three years preceding
   their resignation they
   had accumulated 36 days leave. The conclusion was factually wrong
   because they admittedly took days
   off during the end of each of
   those years and only came back to work in the second week of the
   following year.

   
   

4. 
   The onus was on the
   complainants to show how many days they took and how many days
   remained. The complainants contended themselves
   with a speculation
   that they each had thirty six days, which as we have shown cannot
   possibly be correct. Since the onus was
   not discharged this court
   is in the dark as to the number of leave days that each of the
   three complainants had.

   
   

5. 
   It follows therefore
   that even if PW2 and PW3 may have correctly submitted their
   resignation to PW1, it cannot be said that
   they gave adequate one
   month’s notice which by law they were obliged to give. The facts
   before us simply do not support
   such a conclusion because we do not
   know how many leave days they had to their credit which they could
   tender as notice.

   
   

6. 
   Even assuming they had
   proved that they did have thirty six days which they could utilize
   to serve their notice, such an arrangement
   would need to be made
   and agreed with the employer. Section 120(1) of the Code provides
   that;

   
   

“An
employee shall be entitled in each year to a minimum of 12 working
days holiday on full pay, to
be taken at such times as may be agreed between the employer and the
employee.
(emphasis
added).

7. 
   What happened in casu
   is a direct opposite of what the law provides. Infact it was
   anarchy. The complainants cannot therefore,
   be said to have given
   a proper and adequate notice in terms of the law. They are no
   different from deserters. In the circumstances
   both the claim for
   severance pay and leave cannot succeed. They are accordingly
   dismissed.

   
   

6. 
   UNLAWFUL DEDUCTIONS

   
   

1. 
   The respondent denies
   making any unlawful deductions from the salaries of staff in July
   2005. Respondent contends that the
   staff voluntarily paid back to
   it what they had agreed to reimburse to it (the respondent) for the
   misuse of the office telephone.
   The three complainants on the
   other hand argued that they did not pay the money to the respondent
   freely.

   
   

2. 
   The amounts paid back
   by the employees or deducted by the employer as the case may be,
   are not disputed. What remains to be
   decided is whether the
   employer was justified in demanding the payment that it sought from
   its employees and in accepting such
   payments.

   
   

3. 
   Section 85(3) of the
   Code provides in part that an “employer may take fair and
   reasonable deductions from the wages of an
   employee in respect of
   but not exceeding the amount of loss or damage caused by the
   deliberate default or gross neglect of
   such employee to any tools,
   material or other property of that employer.”

   
   

4. 
   All the three
   complainants including DW2 were unhappy that they were made to
   share the bill equally among themselves, the office
   included. They
   were particularly unhappy that the calls for which they were to pay
   back the employer were not identified.
   There can be no doubt that
   their concern is well founded. The respondent clearly acted
   arbitrarily in imposing the penalty
   universally without proper
   apportioning of the blame.

   
   

5. 
   In her testimony the
   Managing Director, DW1 identified the persons in charge of the
   control measures as PW1 and PW2. Other
   than preliminary enquiries
   which she says she made from them about the rising bill; there is
   no evidence that disciplinary
   action was brought against them for
   overriding the system they were supposed to follow. Instead the
   blame was apportioned
   equally among all staff members. Ex
   facie,
   this approach was unfair and smacked of capriciousness.

   
   

6. 
   Even assuming she was
   entitled to demand repayment from the staff in the circumstances of
   this case, the employer infringed
   the letter and spirit of section
   85(3) where it provides that:

   
   

“no
deduction in respect of any one occurance shall, without the prior
approval of the Labour commissioner, exceed an amount equal
to one
third of the employee’s wages for a period of one month. Such
amount may be deducted in installments so as to allow the
employee to
have sufficient means to maintain himself and his dependants.”

Evidence
we have heard is that the M1,500-00 that PW2 paid back to the
employer represented her full salary for the month and it
was
nevertheless taken. In the case of PW1 the M1,000-00 she paid
represented approximately 51% of her monthly pay, while PW3’s

deduction of M667 represented 34%. All these amounts were above the
one third of salary permitted by law.

7. 
   The complainants and
   the staff argue that an attempt should have been made to assess
   what the office portion of the bill should
   have been rather than
   the staff to be made to share equally with the office. I think
   there is sense in this concern. Clearly
   the matter was not
   investigated. The respondent instead rushed to impose universal
   penalty.

   
   

8. 
   Finally, it was not
   explained to us why it took the respondent three years to realize
   that its control systems had been overridden.
   Surely that smacks
   of negligence. It cannot be fair to cover managerial negligence by
   making staff to repay faults dating
   so many years back with no
   explanation why they could not be identified timeously.

   
   

9. 
   The conclusion to which
   we arrive is that the respondent was not justified to make the
   staff to repay it for the alleged misuse
   of the telephone without
   proper investigation of the blameworthiness of each of the
   employees. Furthermore, the acceptance
   of the repayments as the
   respondent chooses to call them contravened the provisions of
   section 85(3) of the Code. For these
   reasons the respondent is
   ordered to pay back to the three complainants, the
   respective
   amounts as they appear in the originating application which were
   improperly paid to it by the complainants. The
   repayments are to
   be effected within thirty days from the handing down of this award.

   
   

THUS
DONE AT MASERU THIS 24^TH
DAY OF OCTOBER 2006.

L.
A. LETHOBANE

PRESIDENT
OF THE LABOUR COURT

D.
TWALA I AGREE

MEMBER

M.
THAKALEKOALA I AGREE

MEMBER

FOR
APPLICANTS MS NTENE & MR. MOSHOESHOE

FOR
RESPONDENTS: MR. MOSOTHO