Labour Court of Lesotho, Serame Khampepe v. Muela Hydropower Project Contractors and four others, 2 September 1999, No. LC 29/97
Labour Code of Lesotho
Article 4. Principles used in interpretation and administration of Code
The following principles shall be used in the interpretation and administration of the Code:
(b) no provision of the Code or of rules and regulations made there under shall be interpreted or applied in such a way as to derogate from the provisions of any international labour Convention which has entered into force for the Kingdom of Lesotho;
(c) In case of ambiguity, provisions of the Code and of any rules and regulations made thereunder shall be interpreted in such a way as more closely conforms with provisions of Conventions adopted by the Conference of the International Labour Organization, and of Recommendations adopted by the Conference of the International Labour Organization;
Use of international law as a guide for interpreting domestic law
Collective dismissal/ Right to individual consultation before dismissal/ Use of international law as a guide for interpreting domestic law
An undertaking had carried out a collective dismissal procedure. One of the employees challenged his dismissal, arguing that the employer should have consulted him prior to termination. The Labour Court had to determine whether the employer was subject to an obligation of that nature.
After reviewing the provisions of the Labour Code concerning the pre-dismissal interview, the Court then referred to ILO Convention No. 158 as a guide for interpreting national law:
“What is clear is that the hearing as it is envisaged in Section 66(4) of the Code is not a pre-dismissal requirement where the dismissal is a result of operational requirements. This Court has however, basing itself on the International Labour Organization Instruments and decisions of neighbouring countries especially South Africa, evolved a precedent in terms of which an employee earmarked for retrenchment must be notified in good time of the intended action and consulted on alternatives. (See Article 13(1)(a) of ILO Convention No. 158 of 1982 concerning Termination of Employment).3 The established principle however, is that where employees are members of a trade union or some other collective body through which they communicate with the employer or matters of common interest, it is sufficient for the employer to consult with such a union and/or collective body.”
By interpreting national law in conjunction with ILO Convention No. 158, the Labour Court of Lesotho found that whenever the workers’ representatives were consulted about a collective dismissal the employer was not required to hold individual pre-dismissal interviews. On these grounds, and since it transpired that the complainant belonged to a union which was consulted before the dismissal, the appeal was dismissed.
“When the employer contemplates terminations for reasons of an economic, technological, structural or similar nature, the employer shall:
(a) provide the workers’ representatives concerned in good time with relevant information including the reasons for the terminations contemplated, the number and categories of workers likely to be affected and the period over which the terminations are intended to be carried out;”