Tsebetsalalaka v Phelanyane (LC/ENF 340 of 3) [2004] LSLC 1 (6 February 2004)

IN THE LABOUR COURT OF LESOTHO LC/ENF/340/03 HELD AT MASERU IN THE MATTER BETWEEN: RAFONO TSEBETSALALAKA APPLICANT AND PHOOFOLO PHELANYANE RESPONDENT JUDGMENT This is an application for the enforcement of an award of the Arbitrator dated 2nd October 2003. The application is made in terms of Section 34 of the Labour Code Order 1992 (the Code) read together with Section 228E(5) of the Labour Code (Amendment) Act 2000 (the Act) which provide in reverse order as follows: 228 E(5) “An award issued by the Arbitrator shall be final and binding and shall be enforceable as if it was an order of the Labour Court.” 34 Enforcement of Payment. “Where the court has given judgment against a party to pay any sum under a contract of employment or under the provisions of the Code and the party fails to make any such payment within the time specified in such judgment, the President of the Court may, on the application of a party or a labour officer acting on behalf of any person to whom such sums are due summon such party to appear before the President of the Court to answer why payment has not been made.” The applicant herein referred a dispute of right concerning payment of notice, leave and long service to the Directorate of Dispute Prevention and Resolution in the District of Leribe. Section 227(A) of the Act provides that “if the dispute is one that should be resolved by Arbitration (as was the case in casu), the director shall appoint an arbitrator to attempt to resolve the dispute by conciliation, failing which the arbitrator shall resolve the dispute by arbitration.” The award shows that the dispute came before Arbitrator Molapo-Mphole on the 7th August 2003. The award does not show if the arbitrator first sought to resolve the dispute through conciliation in terms of Section 227(A) of the Act. What is clear from the award is that the dispute was determined by arbitration, which is a further step, applicable if conciliation fails. Conciliation is clearly a preemptory stage in terms of the Act. It is therefore absolutely important that an arbitrator shows in the award that it was traversed. Otherwise an adverse inference that it was bypassed could be made which would have a disastrous consequence of nullifying the entire proceedings. I am prepared to assume however, that the arbitrator did start by attempting to reconcile the opposing sides before embarking on the road of arbitration. In her award the arbitrator concluded that the respondent should pay the applicant a sum of M2,307-62 (Two thousand three hundred and seven Maloti and sixty two lisente). The award was to be complied with within thirty days from the date of its issue. That would have been the 1st November 2003. No payment was made by the respondent in compliance with the order until the thirty days passed. On the 5th December 2003, the judgment creditor filed an application with the Registry of this court in terms of Section 34 of the Code petitioning this honourable court to enforce the award of arbitrator Molapo-Mphole. The Registry issued a letter summoning the respondent to appear before the President in terms of Section 34 of the Code on the 2nd February 2004 to explain his default to honour the award of the Arbitrator aforesaid. On the stipulated date Mr. Hlaoli appeared on behalf of the respondent and sought the postponement of the matter as 2nd February was the official opening of the High Court 2004 session. He appeared again on the 4th and the 5th February. The respondent had a nagging feeling that his concerns had not been addressed by the arbitrator. He however was going to pay simply out of fear of the consequences. Upon reading through the award to which it was giving effect, the court discovered glaring irregularities and improprieties which if left unaddressed would bring into question this court’s discharge of its functions under the Code as amended and the constitution of Lesotho. JURISDICTION The pertinent issue to determine before getting into the problems of the award is whether this court has the jurisdiction to interfere with a decision of the Arbitrator of the Directorate. In terms of section 228E(5) DDPR decisions are “final and binding.” Accordingly no appeal lies against them. That section does not however exclude the courts’ inherent power to review such decisions. (See Lawrence Baxter Administrative Law 4Ed. Pp.305- 306). At common law courts have inherent jurisdiction to exercise supervisory powers over administrative bodies exercising public functions as well as tribunals exercising a judicial function in line with the courts’ general jurisdiction and duty to apply the law. (Ibid at pp.3045-305). Section 38A(1) (b)(ii) gives the Labour Appeal Court “exclusive jurisdiction to hear and determine all reviews from arbitration awards issued in terms of this Act.” It follows that a party who seeks a review of the award of the arbitrator would have to apply to the Labour Appeal Court. To that end the jurisdiction of this court as well as of any other court is excluded. It does not however exclude review as of course where a court is seized with a matter in circumstances such as the present. The powers of the Labour Court are listed in Section 24 and Section 226 of the Act. The latter section gives the court the exclusive jurisdiction to resolve disputes concerning the application and interpretation of any provision of the Labour Code or any other labour law. Section 24 vests the court with wide powers, which it suffices to say when brought to the Labour Court for enforcement, arbitral awards of the DDPR are transformed into proceedings falling under the exclusive jurisdiction of the court in terms of section 24 and/or section 226 of the Act depending on the issue that will fall for the determination of the court. It follows that once brought to court for enforcement, an award takes the form of proceedings before the Labour Court and in that regard the court can exercise any powers vested in it including the common law power to review such decision if in the opinion of the court the decision goes against the very law which this court is tasked to apply. In any event at common law a court of law has power to correct its decisions if it has been made in error upon the error coming to its attention at anytime before execution. By legal fiction decisions of the DDPR have in terms of Section 228E(5) of the Act been made the decisions of this court. It follows that the court can in the same way that it can correct its natural decisions if there is error in them also correct errors and mistakes discernable in the awards of the DDPR. It can be added further that having exercised the option to file the award with this court for enforcement the parties have submitted to the jurisdiction of this court to exercise all lawful powers of a court of law over the decision. They are therefore estopped from seeking to object to its jurisdiction as indeed the court cannot be powerless in the face of infringement of a law which it is within its power to enforce. I accordingly come to the conclusion that this court has the jurisdiction in enforcement cases of the DDPR to exercise all powers it has under the enabling statutes including the common law power to correct and put right any misdirections inherent in such award. AWARD In her award the Arbitrator had made a summary of the facts common to both parties which she closed by stating a pertinent issue for determination as being whether the separation of the parties came about as a result of dismissal of the applicant by the respondent or whether the former deserted. The arbitrator found after hearing evidence that the applicant was never dismissed. It followed that she found that he had deserted. She accordingly dismissed the claim for payment of notice. Surprisingly however, the arbitrator found that despite the desertion the applicant was entitled to severance pay. This was a complete misreading of the relevant legislation. Section 79(2) of the Code provides that “an employee who has been fairly dismissed for misconduct shall not be entitled to severance payment.” It is trite law that desertion is an act of misconduct, for which an employer can fairly terminate the employee’s contract. The respondent herein has not condoned the applicant’s desertion. There can therefore be no question of the applicant’s entitlement to severance pay in the circumstances. The Arbitrator therefore erred in holding that the applicant was entitled to severance payment. The Arbitrator further made a factual finding that the applicant was entitled to a one month’s leave per year which he had not taken in the year leading to his desertion. She further found that the applicant was earning M750-00 per month. For some reason however, when she made an award for payment of this leave the arbitrator awarded payment of M923-00. There is no justification for this inflated amount which directly contradicts the finding that the applicant’s salary was M750-00 per month. For these reasons this court found that it could not give effect to such a clearly erroneous award and decided instead to correct and vary it to the extent that the claim for severance pay was set aside and the amount awarded for leave due but not taken was reduced from M923-00 to M750- 00. In the circumstances it is ordered that the respondent pays applicant an amount of M750-00 in full and final settlement of this dispute. The said payment is to be made on or before the 16th February 2004. THUS DONE AND DATED AT MASERU THIS 6TH DAY OF FEBRUARY, 2004. L. A. LETHOBANE PRESIDENT 5