Nthabiseng Mokoena v Lesotho Post Bank (Pty) Ltd (LC 80 of 2013) [2013] LSLC 72 (13 October 2013)

`1IN THE LABOUR COURT OF LESOTHO LC/80/2013 HELD AT MASERU In the matter between: NTHABISENG MOKOENA APPLICANT And LESOTHO POST BANK (PTY) LTD RESPONDENT JUDGMENT Hearing Date: 3rd December 2013 Application for declaratory order and other relief. Applicant arguing that Respondent had no right to discipline her during the notice period – Applicant relying on the principle that a resignation is a unilateral act that terminates the contract. Respondent arguing that the principle notwithstanding, Applicant remained its employee during notice period and was thus entitled to discipline her. Court finding that Applicant was indeed an employee of Respondent during notice period and that Respondent had a right to discipline her. Court also dismissing the consequential relief. Parties not requesting costs and no order as to costs being made. BACKGROUND OF THE ISSUE 1. This is an urgent application for a declaratory order and consequential relief. The matter was then set down for hearing on this day, following the granting of an order for dispensation with the ordinary rules pertaining to service and time limits. Having heard arguments of parties, the Court reserved its judgment for a later date. Applicant was represented by Adv. Letsika, while Respondent was represented by Adv. Ntaote. The matter was opposed and both parties were in attendance. 2. The background of the matter is that Applicant was an employee of Respondent until she resigned from employment. The circumstances behind her resignation are that, on or around the 30th September 2013, Applicant served Respondent 1 | P a g e with a resignation letter. In terms of the said letter, Applicant was to serve a one month notice period, which was to run from the 1st October 2013 to 30th October 2013. On or around the 16th October 2013, and during her notice period, she was served with a letter wherein she had been charged for misconduct. The said letter had also informed her of the date of hearing, which was on the 22nd October 2013. 3. On or around the 21st October 2013, Applicant served the Respondent with a copy of sick leave, which had recommended that Applicant should be allowed to rest from the said date to the 30th October 2013. On the 30th October 2013, Applicant received a letter from her prospective employer, the Central Bank of Lesotho to the effect that while vetting her employment history, it discovered that she had a pending disciplinary case with Respondent. The letter had also stated that the offer of employment would be placed on hold pending the clearance of Applicant’s disciplinary case at Respondent organisation. 4. In view of this said, Applicant wrote a letter to Respondent on the 7th November 2013, to request it to withdraw the said disciplinary charges that it had laid against her. This request was not taken heed to by the Respondent. On the 14th October 2013, through her attorneys, Applicant wrote a second letter to Respondent reiterating her earlier request and further putting Respondent to terms regarding the requested action. To this date, Respondent has not withdrawn the said charges hence the present application. All mentioned correspondence has been filed or record and forms the annexure to the notice of motion and founding affidavits of Applicant. 5. In casu, Applicant is asking for a final order paraphrased in the following terms, 2.1 The Respondent be declared not to have been entitled to institute disciplinary proceedings following Applicant’s resignation; 2.2 That consequential to prayer 2.1, Respondent be directed to withdraw the purported disciplinary charges against the Applicant and report such withdrawal to the Central Bank of Lesotho. Our judgment is thus in the following. 2 | P a g e SUBMISSIONS AND ANALYSIS 6. It was Applicant’s case that Respondent was not entitled to institute disciplinary proceedings against her, after she had communicated her intention to resign from employment. It was argued that although Applicant was serving her notice period when she received her disciplinary charges, the moment she served the Respondent with the letter of resignation, that letter disentitled Respondent from taking any disciplinary measures against her. The Court was referred to the cases of Motumi Lesotho Highlands Development Authority Ralejoe LC/36/2006 and Selloane Mahamo v Nedbank Lesotho Limited LAC/CIV/04/2011, and the authorities cited therein in support. v 7. Specific reference was made to the quotation from the case of SALSTAFF obo Bezuidenhout v Metrorail [2001] 9 BALR 926, cited in the Selloane Mahamo v Nedbank Lesotho Limited (supra), wherein the following is recorded, “resignation is a unilateral act by which an employee signifies that the contract will end at his election after the notice period stipulated in the contract or by law. While formally speaking a contract of employment only ends on expiry of the notice period, the act of resignation being a unilateral act which cannot be withdrawn without the consent of the employer, is in fact the act that terminates the contract…The mere fact that the employee is contractually obliged to work for the required notice period if the employer requires him to do so does not alter the legal consequences of the resignation.” 8. It was argued that the principle enunciated in the above cases was that once termination had occurred, the employer was barred from taking any disciplinary measures against the employee whose employment had terminated. It was argued that this is clear from the phrase “The mere fact that the employee is contractually obliged to work for the required notice period if the employer requires him to do so does not alter the legal consequences of the resignation” from the SALSTAFF obo Bezuidenhout v Metrorail (supra) authority. It was said that in casu, Applicant’s termination occurred immediately upon her communication of the resignation to Respondent and that any action taken by Respondent after such communication is unlawful. It was on this premise prayed that Respondent be 3 | P a g e declared not to have had the right to institute disciplinary proceedings against Applicant. 9. It was further submitted that the above position sustaining, Respondent be ordered to withdraw the said charges and to further inform the Applicant’s prospective employer, being the Central Bank of Lesotho, of the said withdrawal. It was submitted that this will serve as the clearing of the charges, that has been placed as precondition to reactivate the Applicant’s offer of employment with the Central Bank of Lesotho. It was added that although the Respondent had indicated its intention not to proceed with the hearing, the continued keeping of the record will stand as an impediment towards Applicant acquiring employment, not only with the Central bank, but also with the other potential future employers. 10. that the acknowledgment notwithstanding, In answer, Respondent acknowledged the principles enunciated in the case of Motumi Ralejoe v Lesotho Highlands Development Authority (supra) and Selloane Mahamo v Nedbank Lesotho Limited (supra). Although denied by Applicant, it was the argued circumstances of these cases differed materially from the circumstances in casu and that as a result, the said cases were inapplicable. It was said that in the latter case, Applicant had resigned with immediate effect and the employer charged her after the said resignation. It was added that the court had then held that the said resignation, which was with immediate effect, precluded the employer from instituting any disciplinary charges against the said employee. 11. It was further argued that in the case of Motumi Ralejoe v Lesotho Highlands Development Authority (supra), the employee was given the date on which the termination of the contract would commence. On the said date, the employer called the employee to a disciplinary hearing. It was submitted that the court had held in that case that termination had already occurred at the time that the hearing was conducted and that as a result, the employer had no right to discipline the said employee. 4 | P a g e 12. It was furthermore submitted that neither of the two cases said or suggested that an employee ceases to be so the moment they start to serve their notice period. It was argued that in their notice period, an employee fact, by servicing demonstrates their intention to continue to be bound by the contract until the date of actual termination, which is the end of the notice period. It was argued that the authority in SALSTAFF obo Bezuidenhout v Metrorail (supra), cited in the Selloane Mahamo v Nedbank Lesotho Limited (supra), supports this suggestion. It was prayed that the application be dismissed and further that the consequential relief sought should fall off on account of dismissal of the primary relief. 13. We are aware of the authorities and the then prevailing circumstances in both Selloane Mahamo v Nedbank Lesotho Limited (supra) and the Motumi Ralejoe v Lesotho Highlands in Development Authority agreement with Respondent that the circumstances of the two matters differ materially from those in casu. In the two cases, the issues revolved around the conduct of disciplinary proceedings beyond termination of the employment contracts. In fact, not only are the circumstances different, but the principles enunciated therein do not support the Applicant’s case. We will start with the circumstances. (supra), authorities. We are 14. In the case of Selloane Mahamo v Nedbank Lesotho Limited (supra), the affected employee resigned from employment, with immediate effect, before she could be charged disciplinarily. Upon receipt of her resignation letter, the employer indicated its refusal to accept the resignation letter and invited Mahamo to a disciplinary hearing. It was held in this case that Nedbank had no right to proceed with the hearing post the resignation. Clearly, the circumstances in casu differ material from those in the Selloane Mahamo v Nedbank Lesotho Limited (supra) case, as the Respondent in casu has in no uncertain terms expressed its intention not to proceed with the disciplinary proceedings beyond the termination of Applicant. 15. In the case of Motumi Ralejoe v Lesotho Highlands Development Authority (supra), the employee had been informed that his actual retrenchment would take effect on the 31st January 2006. On the 27th January 2013, he was invited to a 5 | P a g e disciplinary hearing to be held on the 31st January 2013. However, on that date, the matter did not proceed but was postponed to the 8th and 9th of the Subsequent month. The Court then held that the Respondent had no right to proceed with the hearing beyond the date of termination as Applicant was no longer its employee. In fact the Court specially stated that the proceedings were an unnecessary exercise and declared them invalid. In the same vein, the circumstances of this case differ from those in casu and are in fact rather similar to those that prevailed in the Selloane Mahamo v Nedbank Lesotho Limited (supra) case. 16. Assuming that Applicant’s reliance on these cases was purely premised on the principles enunciated, even so, the principles do not support her case. We say this because the principle in both cases is that it is not competent for the employer to proceed to discipline a person who has resigned as such a person is no longer its employee. The question that therefore remains to be determined is when an employee ceases to be so in terms of the law, that is, when is a person taken to have resigned. 17. In the case of Selloane Mahamo v Nedbank Lesotho Limited (supra), the Court considered the nature of resignation and from the case of ALSTAFF obo relied on a quotation Bezuidenhout v Metrorail (supra) as recorded at paragraph 7 of this judgment. It is overt from this authority that during the notice period, a person remains an employee until the expiry of the said notice, for the reason that the contract of employment only comes to an end upon the expiry of the notice period. We are in agreement with Respondent that by serving a notice period, an employee demonstrates the intention to continue to be bound by the contract until the end of the notice period. 18. The above being the case, it is goes without saying that the employer remains seized with the all powers and authority to deal with the said person, as it would with any other employee within their employ. Therefore, Applicant was an employee of the Respondent until the end of the notice period and all the processes that the Respondent undertook in that period, are valid in law. Put differently, Respondent was entitled during the notice period to attempt to discipline Applicant, as it did. 6 | P a g e 19. By reason of Our findings above, the prayer for the withdrawal of the charges and a report to the Central Bank of Lesotho, about the withdrawal of the charges must fall off as it is consequential to the first prayer. Parties have not made any prayer for costs and as a result no such award will be made. AWARD We therefore make an award in the following terms: a) That this application fails; and b) No order as to costs is made. THUS DONE AND DATED AT MASERU ON THIS 13th DAY OF DECEMBER 2013. T. C. RAMOSEME DEPUTY PRESIDENT (a.i) THE LABOUR COURT OF LESOTHO Mrs. M. THAKALEKOALA MEMBER Mrs. L. RAMASHAMOLE MEMBER I CONCUR I CONCUR FOR APPLICANT: FOR RESPONDENT: ADV. LETSIKA ADV. NTAOTE 7 | P a g e