Mokhokhoba v Manager - Malea-Lea Sec. School and Others (LC 4 of 95) [1995] LSLC 16 (1 September 1995)

IN THE LABOUR COURT CASE NO. LC/4/95 HELD AT MASERU IN THE MATTER OF: 'MOTSI MOKHOKHOBA APPLICANT AND THE MANAGER - MALEA-LEA SEC. SCHOOL 1ST RESPONDENT THE BOARD - MALEA-LEA SEC. SCHOOL 2ND RESPONDENT EDUCATIONAL SECRETARY - ACL SCHOOLS 3RD RESPONDENT ______________________________________________________________ AWARD ______________________________________________________________ Applicant herein was employed by the respondents represented by the 1st Respondent on the 12th July 1994. He was employed as a temporary teacher and as such his contract was subject to the provisions of Regulation 7 of the Teaching Service Regulations 1986; in particular paragraphs (a) and (c) which provide: "7. There shall be implied in every temporary contract:" "(a) a condition that the contract may be terminated by the Manager or teacher at any time after giving not less than one month's written notice or one month's salary in lieu of such notice by either party of his intention to do so:" "Provide (sic) that a temporary contract may be terminated at any time by written mutual agreement between the Manager and the teacher;" "(e) a condition that a notice given subject to paragraph (a) shall be at the end of a school session." In November of that year, the respondents gave applicant a one month's notice in terms of the aforesaid regulation 7(a) to the effect that his contract of employment would terminate on the 31st December 1994. The notice was signed by the Manager, counter- signed by a member of the board of the school and approved by the Education Secretary for the Anglican Church of Lesotho Schools. The applicant instituted this proceedings on the 6th January 1995, seeking a declaration that the purported termination of his contract is a nullity in that it was effected without affording him the opportunity to be heard. The application was heard on the 11th July 1995 and thereafter judgment was reserved. In his argument, Mr. Rakuoane for the applicant said that the termination of the applicant was contrary to Section 66(4) of the Labour Code Order 1992 (The Order). He pointed out that even though the regulations allowed termination of applicant's contract upon giving him one month's notice he still had to be given an opportunity to be heard. He ended by referring us to Lawrence Baxter's Administrative Law, 3rd Impression 1991 at pages 569-578 and in particular at page 570 where the learned author submits that "where the enabling legislation is silent, the duty to observe the principles of natural justice like all other judicial qualifications of the exercise of statutory powers, must be found to have been impliedly intended by the legislature." Mr. Mafantiri for the respondents submitted that, applicant's contract was terminated in accordance with the terms of his contract which permits termination upon giving one month's notice. He further submitted that this termination was in accordance with Section 63 of the Code which he contends does not require that an employee be afforded a hearing prior to dismissal. Alternatively he argued that if the court were to find that the applicant was unfairly dismissed, it would mean that the contract is in conflict with the Code and as such unlawful. He concluded by saying that if the contract is unlawful, the applicant should not be allowed to rely on it. This court has held before that an employer cannot without valid reason give an employee notice of termination merely because the contract of employment between the parties provide that the contract may be terminated upon giving such notice. Termination of contract that is effected on such premises will be held an unfair termination. (see Ekkerhard Oosterhuis .v. Bishop Phillip Mokuku LC/2/94 (unreported) and the authorities cited therein.) The Onus is on the respondents to show that they had justifiable cause for terminating applicant's contract as they did. There is no dispute that applicant's contract was of a temporary nature and as such could be terminated when from the respondent point of view, applicant's temporary employment was no longer required. Mr. Mafantiri pointed out that the termination complied with Section 63 of the Code which does not require that an employee should be given a hearing. He cited a case of Casserly .v. Stubbs 1916 TPD 312 which is an authority for the proposition that unless a statute expressly alters the common law, the alteration cannot be inferred. This case does not support Mr. Mafantiri's argument, it instead defeats it. Section 63 does not provide that upon giving a notice of termination specified thereunder a person being terminated may not be given a hearing. Therefore the common law requirement that before giving an employee such notice the principles of natural justice be observed still stands. The principle of audi alteram partem rule is sacred in our law. Unless specifically excluded by the legislature it cannot be inferred that it has been excluded. (see Baxter supra at page 569). The terms of teachers employed under temporary contracts are spelled out under regulation 7 of the Teaching Service Regulations. In terminating applicant's contract; which they were entitled to terminate, the respondents were acting pursuant to regulation 7. Nowhere under the regulation are the respondents empowered to terminate a temporary teacher without first giving him a hearing. In Muller & Others .v. Chairman of Ministers' Council, House of Representatives & Others (1991) 12 ILJ 761 at page 769 Howie J of the Cape Provincial Division held that: "When the statute empowers a public body or official to give a decision prejudicially affecting an individual in his liberty, property existing rights or legitimate expectations, he has the right to be heard before that decision is taken unless the statute expressly or impliedly indicates the contrary...." At page 776 of the judgment, the learned judge goes on to say that legislative silence as to the procedure applicable when an administrative decision is taken is no warrant for inferring exclusion of a hearing. "It is not tenable to suggest, in the light of the consequences which attach to (termination of applicant's contract) that the (Minister) intended to leave the question of (termination of applicant's contract) to the unfettered discretion of the (respondents)." The above position is fortified by the provisions of the Code with regard to dismissals. It may be argued that since applicant's contract was terminated in terms of the provisions of his contract applicant's case is therefore, not a case of dismissal. In terms of Section 68 of the Code the termination of applicant's contract by the respondents was a dismissal. Section 68(a) defines "dismissal" as including, inter alia; "(a) termination of employment on the initiative of the employer." Since termination of applicant's contract was at the initiative of his employers, it was in terms of the above paragraph a dismissal. Section 66, which in our view strengthens the common law position on the question of a hearing, when an employee is purported to be terminated under Section 63; provides: "(1) 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....; (b) connected with the conduct of the employee at the work place; or (c) based on the operational requirements of the undertaking establishment or service." "(2)..." "(3)..." "(4) Where an employee is dismissed under sub-section (1)(a) or (b) of this section, he or she shall be entitled to have an opportunity at the time of dismissal to defend himself or herself against the allegations made unless in light of the circumstances and reason for dismissal, the employer cannot reasonably be expected to provide this opportunity..." We have already stated that the onus is on the respondents to justify the applicant's termination. If a hearing had been held, this would have been a proper forum at which the applicant would be given a justification for the termination of his contract and he in turn would give his views on the proposed action. The fact that a contract of employment is temporary or for a fixed duration is no justification for not giving an employee a hearing, when such contract is terminated. (See the decision of the Appellate Division in the case of Minister of Water Affairs .v. Mangena & Others (1993) 14 ILJ 1205). In response to an argument that the temporary employment of the respondents in the above case terminated on the date on which the work on the project at which they were working came to an end, the learned judge of appeal held at page 1208, that if upheld the argument would lead into an anomalous situation; "... that an employee would not know when, or if, his employment had come to an end. That would depend upon facts not likely to be within his knowledge. This unusual and unhappy situation could neither have been intended nor contemplated by the legislature." It seems to us that under our labour law applicant's right to a hearing in the circumstances of this case is not a common law right but a statutory right as is contained under Section 66(4) of the Code. However, even if reliance were to be made on the Teaching Service Regulations 1986, we have already held that, so sacred is the right to be afforded a hearing prior to dismissal that, the silence of the regulation with regard thereto, cannot be interpreted to mean that the Minister had intended that employees on temporary contracts can be terminated without a hearing. In any event as a subsidiary legislation, the regulations would not override the explicit provisions of the Code with regard to a right to a hearing prior to dismissal; in particular Section 66(4). Mr. Rakuoane for the applicant had also raised the argument that Regulation 7 of the Teaching Service Regulations does not apply to the applicant in so far as he is a certificated teacher and as such ought not to have been employed on temporary terms. There is no merit in this argument, because among categories of teachers that are subject to temporary terms of employment are "supply teachers, or teachers appointed for a limited period of service, irrespective of qualifications" (see Regulation 7(b)(iii) emphasis added) . It is clear that the applicant had been appointed for a limited period of service, and when the purpose for which he had been employed had been achieved he could be terminated after being afforded the necessary hearing regarding his impending termination. Mr. Mafantiri submitted that if the applicant were to be found to be unfairly dismissed, it would mean that the contract is contrary to the Labour Code and as such unlawful and therefore unenforceable. Applicant would therefore be barred from relying on it. We have not found any provision of the applicant's contract that is in conflict with the Code. It is entirely within the provisions of the Code. All that has lacked is the observation of the audi alteram partem rule, which is implied in all contracts of employment; unless specifically or, by necessary implication excluded. It was Mr. Mafantiri's further contention that failure to give applicant a hearing is a technicality and the respondent should not be penalised for this technical oversight. With respect we disagree. The very fact that being afforded a hearing is a right shows clearly that it is not a technicality. The right to be heard before any adverse administrative action is taken is the principle of natural justice which is deeply imbedded in our law, thus making it an integral part of it. It cannot just be brushed aside as a mere technicality. As Baxter is his Administrative Law at page 540 puts it; "The principles of natural justice are considered to be so important that they are enforced by the courts as a matter of policy, irrespective of the merits of the particular case in question, being fundamental principles of good administration their enforcement serves as a lesson for future administrative action. But more than that, and whatever the merits of any particular case, it is a denial of justice in itself for natural justice to be ignored." The policy of the courts was crisply stated by Lord Wright in 1943: "If the principles of natural justice are violated in respect of any decision, it is, indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision." "The process by which a decision is reached, especially in administrative law and above all where the decision is a discretionary one, serves in itself to legitimize the outcome which, because it is not itself justiciable, cannot be evaluated in any other way. This is the notion of procedural justice and it is important to understand that administrative decision- making is heavily dependent upon procedural justice, to which the principles of natural justice contribute significantly, for its legitimacy." It follows therefore that contrary to what Mr. Mafantiri said about respondents being penalized for a technicality, there has in effect been a traversity of justice, consequently respondents have acted unfairly in terminating applicant's employment without a hearing. AWARD 1. It is common cause that the 1st and 2nd respondents did not answer the originating application. Only the 3rd respondent did. It is also common cause that all the three respondents had signed the letter that notified applicant of his termination, thus making themselves jointly and severally answerable for any cause of action that might arise out of that letter. We conclude that their silence is an indication that they await and are going to comply with any award that this court will hand down. 2. The purported termination of applicant's contract is declared null and void and of no force and effect in that it was effected in violation of the audi alteram paterm principle. 3. The court is unable to order that applicant be paid his salary from the date of purported termination to date of judgment, because the applicant may have obtained another teaching job in the meantime and as such there is likely to be a double payment. The onus was on the applicant to show that he is still unemployed. This factor was not canvassed at the hearing. 4. Applicant amended his prayer that he be reinstated as principal and sought reinstatement as a teacher. Respondents are ordered to reinstate applicant in his position as a teacher at Malea-lea Secondary School. 5. Costs will be costs in the suit. THUS DONE AT MASERU THIS 1ST DAY OF SEPTEMBER 1995. L. A. LETHOBANE PRESIDENT A. T. KOLOBE MEMBER M. KANE MEMBER I CONCUR I CONCUR FOR APPLICANT FOR RESPONDENT : : MR. RAKUOANE MR. MAFANTIRI