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Lesotho - Substantive requirements for dismissals

Substantive requirements for dismissals (justified and prohibited grounds) - Lesotho - 2019    

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Obligation to provide reasons to the employee: Yes
  • Art. 69 (1) LC: "The employer shall provide a written statement of the reason for dismissal [...] to any employee who is dismissed. Such statement shall be given to the employee either before dismissal, at the time of dismissal or within four weeks of the dismissal having taken effect".

    "Where an employer has given no written statement in accordance with subsection, or if the material details of the statement are incorrect, the Court may (a) declare the reasons for the dismissal; and (b) award, in addition to other possible relief, two weeks' wages to the employee": art. 69 (5) LC.

Valid grounds (justified dismissal): worker's conduct; economic reasons; worker's capacity
  • Art. 66 (1) LC: An employee shall not be dismissed, whether adequate notice is given or not, unless there is a valid reason for termination of employment, which reason is
    (a) connected with the capacity of the employee to do the work the employee is employed to do (including but not limited to an employee's fraudulent misrepresentation of having specific skills required for a skilled post);
    (b) connected with the conduct of the employee at the workplace; or
    (c) based on the operational requirements of the undertaking, establishment or service.

    Art. 10 of the Codes of Good Practice (not binding) provides extensive guidance on establishing the fairness of a reason for dismissal on the grounds of misconduct. Further guidance is provided in Art. 13 relating to dismissal on the basis of poor work performance; Art. 15 regarding dismissal on the grounds of incapacity or incompatibility; Art. 16 regarding dismissal on the grounds of ill health or injury; and Art. 18 on dismissal relating to participation in an unprotected strike.

Prohibited grounds: marital status; pregnancy; maternity leave; family responsibilities; filing a complaint against the employer; race; colour; sex; religion; political opinion; social origin; nationality/national origin; trade union membership and activities; lawfully taking leave; HIV status
  • • Art. 66 (3) LC lists the invalid reasons for terminating employment as the following:
    (a) trade union membership or participation in trade union activities outside working hours or, with the consent of the employer, within working hours;
    (b) seeking office as, or acting or having acted in the capacity of, a workers' representative;
    (c) the filing in good faith of a complaint or grievance, or the participation in a proceeding against an employer involving the alleged violation of the Code, other laws or regulations, or the terms of a collective agreement or award;
    (d) race, colour, sex, marital status, pregnancy, family responsibilities, religion, political opinion, national extraction or social origin;
    (e) absence from work in accordance with the provisions of the Code or as authorised by the employer.

    In addition, see art. 5 LC : general article on non-discrimination.
    On HIV status, see: art. 235 G Labour Amendment Act 2006.
    See also art. 67 LC: "If the Labour Court is satisfied that an employer dismissed an employee in order to avoid liability for providing the employee with any benefit provided for under the Code, such dismissal shall be deemed unfair".

Workers enjoying special protection: workers' representatives; pregnant women and/or women on maternity leave
  • - Women on maternity leave: Art. 136 LC provides that any dismissal of any employee that takes effect during her statutory maternity leave shall automatically be an unfair dismissal; and where a female employee is absent from work due to confinement or illness related to pregnancy, or remains absent from work for a longer period as a result of an illness which a medical officer or a registered nurse or midwife has certified in writing to arise in his or her opinion out of the employee's pregnancy or confinement and to render her unfit to return to work, no employer shall, during the period of her absence from work, give notice to dismiss her or terminate her contract of employment.

    - Worker's representatives, see Codes of good practices Art. 11 (8) : specific discipline procedure (mandatory consultation with the trade union).