Sources of regulation
The major source of labour law in Lesotho is the Labour
Code of 1992 (LC). Collective agreements may also provide protection against
dismissal.
Scope of legislation
The provisions for protection under the LC apply to all
contracts of employment with the exception of apprentices and trainees,
who are subject to the Technical Vocational Training Act, 1984. An apprentice
is defined as a person who has entered into an apprenticeship contract
with another person for the purpose of acquiring a skill or learning a
trade. A trainee is a person who is being trained by or for an employer,
or for employment under a training scheme in any trade or occupation (secs.
3 and 61(2), LC).
Contracts of employment
The LC allows and regulates contracts of indefinite duration,
contracts of fixed duration, and contracts to perform specific work or
to undertake a specified journey (sec. 62(1)). 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).
Termination of employment
The contract of employment can terminate, not at the initiative
of the employer, in certain circumstances, including by:
- the
expiry of a fixed-term contract;
- the
completion of the task for which the contract was concluded; and
- employee
retirement.
Dismissal
An employee shall not be dismissed, whether adequate notice
is given or not, unless there is a valid reason for termination of employment
(sec. 66(1), LC). Termination of employment is only valid where
it concerns:
- the
capacity of the employee to do the work he or she was employed to do
(including, but not limited to, an employee’s fraudulent misrepresentation
of having
specific skills required for a skilled post);
- the
conduct of the employee at the workplace; or
- the
operational requirements of the undertaking, establishment or service
(sec.
66(1)(2), LC).
Any other dismissal will be unfair unless, having regard
to all the circumstances, the employer can sustain the burden of proof
to show that he or she acted reasonably in treating the reason for dismissal
as sufficient grounds for terminating employment (sec. 66(2), LC).
The following do not constitute valid reasons for dismissal
(sec. 66(3), LC):
- trade
union membership or participation in trade union activities outside working
hours or, with the consent of the employer, within working hours;
- seeking
office as, or acting or having acted in the capacity of, a workers’ representative;
- non-membership
of a trade union (sec. 196(2), LC);
- filing
in good faith a complaint or grievance, or the participation in a proceeding
against an employer involving the alleged violation of the LC, other
laws or regulations, or terms of a collective agreement or award;
- race,
colour, sex, marital status, pregnancy, family responsibilities, religion,
political opinion, national extraction or social origin; and
- absence
from work in accordance with provisions of the LC (e.g. educational leave,
sick leave, holiday) or as authorized by the employer.
Also, any dismissal that takes effect during the statutory
maternity leave of an employee shall automatically be an unfair dismissal
(sec. 136(1), LC).
Sec. 66 of the LC allows
for dismissal based on the operational requirements of the undertaking.
However, no mention is made of any special procedure that has to be followed,
such as informing the Labour Commissioner/trade union, or when a dismissal
could be described as a “collective dismissal”. Where the employment relationship
is terminated by the employer due to the operational requirements of the
undertaking, the employee is entitled to severance payments (see below)
and holiday pay.
Notice and prior procedural safeguards
A dismissed employee is entitled to have an opportunity
at the time of dismissal to defend himself or herself against the allegations
made, unless the circumstances are such that the employer cannot reasonably
be expected to provide this opportunity (sec. 66(4), LC). No reference
is made in the LC concerning the need for consultation with relevant union
representatives in the case of individual dismissals.
For contracts without reference to limit of time, the employer
may terminate the contract upon giving the following notice periods (sec.
63(1), LC):
- one
month’s notice, where the employee has been working continuously for
one year or more;
- two
weeks’ notice, where the employee has been continuously employed for
more than six months but less than one year; and
- one
week’s notice, where the employee has been continuously employed for
less than six months.
According to sec. 63(2), parties can agree on a
longer period of notice of termination than that which is provided in the
LC. Also, notice to terminate a contract may be either oral or written
(sec. 65(1), LC). The day on which the notice is given shall not
be included in the period of notice. If the employment continues after
the day on which the contract
is to terminate, the termination shall be deemed cancelled and the employment
relationship shall continue as before, unless the employer and employee
agree otherwise. The above-mentioned notice periods do not apply to probationary
employees. An employee may initially be employed for a probationary period
not exceeding four months. At any time during the probationary period or
immediately at its end, the employee may be dismissed with one week’s notice
(sec. 75, LC).
Notice does not have to be given in cases involving:
- summary
dismissal (i.e. cases where serious misconduct by the employee make it
unreasonable for the employer to continue the employment relationship
through the notice period) (sec. 63(2), LC);
- payment
in lieu of notice (where the employer pays in lieu of notice a sum equal
to all wages and other remuneration that would have been owing to the
employee up to the expiration of any notice of termination); and
- fixed-term
employees (the employer shall pay all wages and other remuneration owing
to the employee had he or she continued work until the completion of
the contract).
The employer is to provide a written statement of the reason
for any “dismissal” (as defined in sec. 68(a)(b), LC) to any employee
who is dismissed. If the employer fails to fulfil this requirement, without
reasonable excuse, a fine is imposed which may not exceed 300 maloti (sec.
69(1), LC).
As the LC does not entail special requirements concerning
the procedure to be followed during a collective dismissal, the same notice
requirements (sec. 63(1), LC), conditions concerning a hearing and
the provision of reasons for the dismissal (secs. 66(4) and 69(1),
LC) prima facie apply.
Severance pay
Sec. 79(2) of the LC explicitly
states that an employee who has been fairly dismissed for misconduct (which
includes summary dismissal) is not entitled to severance payments. This
applies only to dismissal on the grounds of misconduct; it is thus unclear
from the LC if a severance payment would apply where the employment relationship
is terminated due to incapacity of the worker.
Except for dismissals for misconduct, employees who have
had their employment terminated are entitled to the following severance
payments:
- for
an employee with more than one year of continuous service with the same
employer, severance payment is to be equivalent to two weeks’ wages for
each completed year of continuous service upon termination of the employment.
If employment were to terminate upon the death of such an employee, severance
pay would still have to be paid (sec. 79(1), LC); and
- for
an employee with at least three months’ of continuous service with the
same employer, an additional one day’s full pay in respect to each completed
month of employment for which the employee has earned, but not taken
a holiday with full pay, would have to be paid (sec. 120(5), LC).
Regardless of an employee’s length of service, the amount
of severance pay for an employee may not exceed a sum which may be prescribed
by the Minister from time to time after consultation
with the Wages Advisory Board (sec. 79(3)).
An employer who fails to make a severance payment in accordance
with sec. 79 of the LC shall be guilty of an offence and shall be liable
on conviction to a fine (600 maloti) or imprisonment (six months) (sec.
80).
Avenues for redress
Unless they are alleging the dismissal was unfair due to
invalid reasons under sec. 66(3), or are alleging constructive dismissal,
the following employees have no right to bring a claim for unfair dismissal
(sec. 71, LC):
- employees
employed for a probationary period, as provided under sec. 75; and
- employees
over the normal age of retirement for the type of employment involved.
Any claim against summary dismissal or unfair dismissal
must be filed with the Labour Court within six months of the termination
of the employment relationship (sec. 70, LC). However, the Labour
Court may allow claims outside this period if it is satisfied that the
interests of justice so demand (sec. 70(1)(2), LC).
The employer has to bear the burden of proof and show that
the termination of the employment relationship was reasonable (sec.
66(2), LC). The decision of the Labour Court is final and no appeal
is possible (sec. 38, LC).
If the Labour Court holds a dismissal to be unfair, it
shall order the reinstatement of the employee in his or her job without
loss of remuneration, seniority, and other entitlements or benefits which
the employee would have received had there been no dismissal, unless it
considers reinstatement of the employee to be impracticable in light of
the circumstances (sec. 73(1), LC).
If the court decides that it is impracticable in light
of the circumstances for the employer to reinstate the employee in employment,
or if the employee does not wish to be reinstated, the court shall fix
an amount of compensation to be awarded to the employee in lieu of reinstatement
(sec. 73(2), LC).
The amount of compensation awarded by the Labour Court
is to be such amount as the court considers just and equitable in all circumstances
of the case. In assessing the amount of compensation to be paid, account
is to be taken of whether there has been any breach of contract and whether
the employee has failed to take such steps as may be reasonable to mitigate
his or her losses (ibid.).
In cases where no written reasons for dismissal were provided,
the court may also award an additional two weeks’ wages to the employee
as compensation (sec. 69(5), LC). The LC does not explicitly cap
compensation and it seems that if it were just and equitable to do so,
full damages could be awarded.
Further information
|
 |
|
|
|
