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Lesotho
 


Source and scope of regulations - 2019    

References
  • Labour Code, Order No. 24 of 1992 [LC]
    Date: 04 Aug 2006 (view in NATLEX »)
  • Labour Code (Amendment) Act, Act No. 9 of 1997
    Date: 1997 (view in NATLEX »)
  • Labour Code (Amendment) Act 2000, Act No. 3 of 2000
    Date: 25 Apr 2000 (view in NATLEX »)
  • Labour Code (Amendment) Act 2006, Act No. 5 of 2006
    Date: 04 Aug 2006 (view in NATLEX »)
  • Labour Code (Codes of Good Practice) Notice No. 4 of 2003 (soft law, not legally binding); view website »
Scope
Size of enterprises excluded (≤): none
Remarks:
  • However there are some exemptions for family undertakings employing less than five people with regards to working hours, employment of young persons. These exemptions do not apply to termination of employment.

Workers' categories excluded: civil/public servants; police; army; prison personnel; state security corps; apprentices
Remarks:
  • Art. 2 (2) LC: the LC shall not apply to: the Royal Lesotho Defence Force; the Royal Lesotho Mounted Police; or
    any other disciplined force (...).
    See also Act no 9 of 1997 which amended art.2(2) of the LC and excluded from the scope of the LC "National Security Service and Lesotho Prison Services".
    In addition, category or class of public officers, public authority or employee may be excluded if so provided by government order. Public servants have been excluded by the Labour Court (Exemption) Order No. 22 of 1995. (CEACR, 2008)
    Art. 61 (1), (2) LC: the part of the LC on termination of employment, dismissal and severance pay is not applicable to apprentices and trainees.

Types of employment contracts - 2019    

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Maximum probationary (trial) period: 4 month(s)

Remarks:
  • • Art. 75 LC
    General rule: probationary period cannot exceed 4 months during which the employee may be dismissed with one week's notice. However, it may be extended beyond 4 months only with the leave in writing of the Labour Commissioner.

    • Art. 8(3) of the Codes of Good Practice (not binding) provides that the probationary period should be of a reasonable length, usually three and sometimes up to four months, having regard to factors such as the nature of the job, the standards required, etc. The period may be extended by agreement.
    The Labour Commissioner may grant extension of the probationary period if:
    (a) If the Commissioner is satisfied that the nature of the job requires a longer period of assessment to determine the suitability of the employee on probation;
    (b) If it is the custom and practice in the industry that a longer period of probation is required for the job;
    (c) If the Commissioner is satisfied that the employer requires a longer period of probation in order to assess the employee (Art. 8(7)).

Fixed term contract (FTC):
  • FTC regulated: Yes
    Remarks:
    • • No limitations on the use of FTCs (reasons, duration, number of renewal). However, art. 62(3) LC regulates termination of FTCs upon expiry of the term and provides that "A contract for one period of fixed duration shall set forth its date of termination. Such a contract shall, subject to the provisions of section 66 concerning dismissal, automatically terminate on that date and no notice of termination shall be required of either party."
      • In addition, art. 62(4) LC provides that "A contract to perform some specific work or to undertake a specified journey shall terminate upon the completion of the work or journey. No notice of termination shall be required of either party, but an employer who terminates such a contract before its completion shall pay the employee all wages and other remuneration that would have been owing to the employee if he or she had continued to work until the completion of the contract."
      • In addition, the LC provides that the non-renewal of a fixed-term contract, or contract for a specific task or journey, will result in dismissal only if the contract provides for the possibility of renewal (sec. 68(6) LC).

      • Art 3(2) of the Codes of Good practice (not binding) provides, however, that a fixed term contract will be deemed to be renewed by default if an employee continues to work after the period of the fixed term expires and the employer accepts the employee to work. The duration of a contract renewed by default will depend on the circumstances. It may be a contract for another fixed term or one terminable on notice. It will depend on the surrounding circumstances.
      Furthermore subsection (3) provides that the failure to renew a fixed-term contract in circumstances where the employee reasonably expected continuity of employment, may constitute a dismissal.
  • Valid reasons for FTC use: no limitation
    Remarks:
    • No statutory restrictions on the use of FTC (art. 62 LC).
  • Maximum number of successive FTCs: no limitation
  • Maximum cumulative duration of successive FTCs: no limitation

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

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Obligation to provide reasons to the employee: Yes
Remarks:
  • 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
Remarks:
  • 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
Remarks:
  • • 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
Remarks:
  • - 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).


Procedural requirements for individual dismissals - 2019    

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Notification to the worker to be dismissed: no specific form required

Remarks:
  • Art. 65 LC: notice to terminate a contract may be either oral or written.

    (See also art. 69 LC: The employer shall provide a written statement of the reason for dismissal either before dismissal, at the time of dismissal or within four weeks of the dismissal having taken effect).

Notice period:
Remarks:
  • Art. 63 LC.
    Statutory notice period is set according to the length of service, as follows:
    * 1 or more years of service: 1 month's notice;
    * more than 6 months and less than 1 year: a fortnight's notice;
    * less than 6 months: 1 week's notice.
    • tenure ≥ 6 months
      • 2 week(s).
    • tenure ≥ 9 months
      • 2 week(s).
    • tenure ≥ 2 years
      • 1 month(s).
    • tenure ≥ 4 years
      • 1 month(s).
    • tenure ≥ 5 years
      • 1 month(s).
    • tenure ≥ 10 years
      • 1 month(s).
    • tenure ≥ 20 years
      • 1 month(s).

    Pay in lieu of notice: Yes

    Remarks:
    • Art. 64 LC

    Notification to the public administration: No

    Notification to workers' representatives: No

    Approval by public administration or judicial bodies: No

    Approval by workers' representatives: No

    Procedural requirements for collective dismissals for economic reasons (redundancy, retrenchment) - 2019    

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    Definition of collective dismissal (number of employees concerned):
    No legal definition.

    Remarks:
    • Art. 66 (1) a) LC : "operational requirements of the undertaking, establishment or service" can constitute a valid reason for dismissing an employee.
      However, there is no mention in the Labour Code to when such dismissal could be described as collective. In addition, there is no specific statutory requirements such as consultation with trade union or notification to the labour administration for dismissals concerning more than one employees.

    Prior consultations with trade unions (workers' representatives): Yes

    Remarks:
    • No statutory obligation.
      However, it has been established by case law.
      For example, in the decision Serame Khampepe v. Muela Hydropower Project Contractors and four others (1997), the Labour Court, basing itself on the ILO Convention 158 and case law of South Africa, ruled that as a matter of precedent, "an employee earmarked for retrenchment must be notified in good time of the intended action and consulted on alternatives". "The established principle however is that where employees are members of a trade union or some other collective bodies, it is sufficient for the employer to consult with such a union and or/collective bodies".
      (see:http://compendium.itcilo.org/en/compendium-decisions/labour-court-of-lesotho-serame-khampepe-v.-muela-hydropower-project-contractors-and-four-others-2-september-1999-no.-lc-29-97)

      Art. 19 of the Codes of Good Practices (not binding) provides that employers have an obligation to consult and negotiate with trade union representatives as soon as a reduction of the workforce through retrenchment or redundancies is contemplated by the employer so that possible alternatives can be explored.

    Notification to the public administration: No

    Notification to workers' representatives: Yes

    Remarks:
    • No statutory obligation.
      However, it has been established by case law.
      For example, in the decision Serame Khampepe v. Muela Hydropower Project Contractors and four others (1997), the Labour Court, basing itself on the ILO Convention 158 and case law of South Africa, ruled that as a matter of precedent, "an employee earmarked for retrenchment must be notified in good time of the intended action and consulted on alternatives". "The established principle however is that where employees are members of a trade union or some other collective bodies, it is sufficient for the employer to consult with such a union and or/collective bodies".
      (see: http://compendium.itcilo.org/en/compendium-decisions/labour-court-of-lesotho-serame-khampepe-v.-muela-hydropower-project-contractors-and-four-others-2-september-1999-no.-lc-29-97)

      See aslo : Art. 19 (4) Code of good practices (not binding).

    Approval by public administration or judicial bodies: No

    Approval by workers' representatives: No

    Priority rules for collective dismissals (social considerations, age, job tenure): No

    Remarks:
    • No statutory provision.
      However, the 2003 Codes of Good Practice (not legally binding), in art. 20 stipulates that selection criteria shall be discussed with the trade union and refers to length of service, skills, affirmative action and qualifications as criteria generally accepted as fair.

    Employer's obligation to consider alternatives to dismissal (transfers, retraining...): No

    Remarks:
    • No legally binding provision. However see: Art. 19 (1) Codes of good practice (not binding) places an obligation on the employer to negotiate with a trade union/ employees’ representatives to reach agreement on alternatives to dismissals such as transfer to other jobs, lay off;or steps to minimize the dismissals such as voluntary retrenchment packages, early retirement etc..

    Priority rules for re-employment: No

    Remarks:
    • No statutory provision.
      However, art. 21 of the 2003 government notice on code of good practice (not legally binding) provides for preferential re-hiring and conditions for its application.

    Severance pay and redundancy payment - 2019    

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    Severance pay:
    Remarks:
    • Art. 79 LC:
      - A worker is entitled to severance pay provided he has not been dismissed for misconduct and has completed more than one year of service.
      - Severance pay shall amount to 2 weeks' wages for each year of service. However, "it shall not exceed a sum which may be prescribed by the Minister from time to time after consultation with the Wages Board". No information was found on this maximum amount.

      However, the 1997 Labour Code Amendment Act provides for exemptions from statutory severance pay where the employer has demonstrated to the Labour Commissioner in writing that it offers a more advantageous separation benefit scheme.
    • tenure ≥ 6 months: 0 month(s)
    • tenure ≥ 9 months: 0 month(s)
    • tenure ≥ 1 year: 2 week(s)
    • tenure ≥ 2 years: 1 month(s)
    • tenure ≥ 4 years: 2 month(s)
    • tenure ≥ 5 years: 2.5 month(s)
    • tenure ≥ 10 years: 5 month(s)
    • tenure ≥ 20 years: 10 month(s)
    Redundancy payment:
    Remarks:
    • No specific redundancy payment. Same as severance pay.
      Art. 79 LC:
      - A worker is entitled to severance pay provided he has not been dismissed for misconduct and has completed more than one year of service.
      - Severance pay shall amount to 2 weeks' wages for each year of service.

      However, the 1997 Labour Code Amendment Act provides for exemptions from statutory severance pay where the employer has demonstrated to the Labour Commissioner in writing that it offers a more advantageous separation benefit scheme.
    • tenure ≥ 6 months: 0 month(s)
    • tenure ≥ 9 months: 0 month(s)
    • tenure ≥ 1 year: 2 week(s)
    • tenure ≥ 2 years: 1 month(s)
    • tenure ≥ 4 years: 2 month(s)
    • tenure ≥ 5 years: 2.5 month(s)
    • tenure ≥ 10 years: 5 month(s)
    • tenure ≥ 20 years: 10 month(s)

    Avenues for redress (penalties, remedies) and litigation procedure for individual complaints - 2019    

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    Compensation for unfair dismissal - free determination by court: Yes

    Remarks:
    • Art. 73 LC: Compensation is awarded if the court decides that reinstatement is impracticable for the employer or if the employee does not wish to be reinstated. The amount of compensation shall be such amount as the court considers just and equitable. Mitigation of loss is the main criterion to decide the amount of compensation.

    Reinstatement available: Yes

    Remarks:
    • Art. 73 (1) LC: Reinstatement is the common remedy unless the employee does not wish to be reinstated of the Court (or the arbitrator) considers it to be impracticable.

    Preliminary mandatory conciliation: Yes

    Remarks:
    • See art. 227 (4) and (5) LC as amended in 2000.

      Depending on the reason for dismissal, disputes are resolved either by the Labourt Court, or by arbitration at the DDPR.
      In both cases, extra judicial prior conciliation is foreseen:
      - Before a dispute is referred to the Labour Court by Directorate of Dispute Prevention and Resolution (DDPR), the Director of the DDPR shall appoint a conciliator to attempt to resolve the dispute by conciliation (art. 227 (5) LC).
      - Prior to the resolution of a dispute by arbitration, the arbitrator appointed by the Director of the DDPR shall attempt to resolve the dispute by conciliation (art. 227 (4) LC).

      On the process of conciliation, see: art. 228 B LC (as amended in 2000)

    Competent court(s) / tribunal(s): labour court

    Remarks:
    • The 2000 Labour Code Amendment Act introduced important changes in the LC with regards to dispute settlement.
      Pursuant to article 226 LC (amended by article 25 of the 2000 Amendment Act), jurisdiction to resolve dismissal disputes of right is now shared between the Labour Court and arbitration, as follows:
      - The Labour Court shall have exclusive jurisdiction in disputes concerning an unfair dismissal if the reason for the dismissal is (art. 226 (1) LC):
      i) for participation in a strike;
      ii) as a consequence of a lock-out; or
      iii) related to the operational requirements of the employer.
      Note that the Labour Court also has exclusive jurisdiction on unfair labour practices and on disputes concerning the application or interpretation of any provision of the Labour Code or any other labour law unless the disputes concerns a matter that shall be exclusively resolved by arbitration as provided in art. 226 (2) LC.
      - A dispute concerning an unfair dismissal for any reason other than a reason referred to above (see i), ii), iii)) shall be resolved by arbitration. Therefore, a dispute concerning dismissal for reasons relating to the conduct of the employee or its capacity is to be solved by an arbitrator.
      In addition, arbitration applies to : a dispute referred by agreement; a dispute concerning the application of a collective agreement, a breach of a contract of employment, a wages order and a dispute concerning the underpayment of any monies due under the Labour Code. (art. 226 (2) LC)
      - Any dispute should be firstly referred to by any party to the Directorate of Dispute Prevention and Resolution (DDPR) in charge of referring the dispute to the competent body (Labour Court or arbitrator) in accordance with the above-mentioned rules (art. 227 LC). However, would the Director of the DDPR consider that a dispute that concerns matters for which arbitration is foreseen also concerns matters that fall within the jurisdiction of the Labour Court, he could refer the case to that Court (art. 226 (3) LC).
      In addition, the Labour Court can always review the arbitration award on application by one of the parties.

    Existing arbitration: Yes

    Remarks:
    • See article 226 and 227 LC (as amended in 2000),
      Mandatory arbitration:
      - A dispute concerning an unfair dismissal for any reason other than a reason referred to above (see i), ii), iii)) shall be resolved by arbitration. Therefore, a dispute concerning dismissal for reasons relating to the conduct of the employee or its capacity is to be solved by an arbitrator.
      - In addition, arbitration applies to : a dispute referred by agreement; a dispute concerning the application of a collective agreement, a breach of a contract of employment, a wages order and a dispute concerning the underpayment of any monies due under the Labour Code. (art. 226 (2) LC)

    Source of additional information - 2019    

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    Links

    Use of International Law by Domestic Courts - Compendium »
    Go to "Dismissal" (second item) / Lesotho.

    ILO Committee of Experts on the Application of Conventions and Recommendations - Comments on the ILO Termination of Employment Convention, 1982, No. 158, (1990-2008) »

    Former ILO termination of employment legislation digest - Lesotho (last updated in 2007) »