Labour Court of Lesotho, Matete and Bosiu v. Lesotho Highlands Development Authority and the Chief Executive, 9 February 1996, No. LC 131/95
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;
(...)
Lesotho
Dismissal
Use of international law as a guide for interpreting domestic law
Non-ratified treaty1
Civil servants seconded to an administrative authority/ End of the secondment contract/ Possibility of drawing several severance allowances concurrently/ Use of international law as a guide for interpreting domestic law
The government had seconded two civil servants to an administrative authority (hereafter “the Authority”) and subsequently decided to end their secondment and to reinstate them in their original branch. The two civil servants considered that in addition to the end-of-mission bonus stipulated in the contract binding them to the Authority they should also receive the severance allowance provided by the Labour Code. The Court thus had to decide whether the workers were entitled to draw these two types of benefit concurrently.
The Court referred to Articles 12(1.a) and 2(4) of ILO Convention No. 1582 to interpret the provisions of the Labour Code pertaining to severance allowances and thus settle the dispute.
“In our view the words “severance allowance or other separation benefits” in Article 12(1) are instructive. It is clear from these words that severance pay as it provided for under Section 79 of the Code is not the only separation benefit that is legally binding to the employer. There is room for payment of other separation benefits in place of severance pay. Article 2(4) allows exemption of an employer from obligation to pay severance pay where such an employer has arrangements which provide for better separation benefits which are at least equivalent to those provided by the Code.”
The Court concluded that the different types of allowance could not be drawn concurrently and that the two employees should only receive the most advantageous allowance:
“Accordingly therefore, the Authority is in line with Article 2(4) of Convention No. 158 exempted by Section 4(a) of the Code from obligation to pay severance pay because the 25% gratuity to which applicants are entitled by virtue of their contracts constitutes an alternative separation benefit which is more beneficial to applicants than severance pay payable under Section 79 of the Code.”
By interpreting the Labour Code in conjunction with ILO Convention No. 158, the Labour Court of Lesotho found that the civil servants were not entitled to draw the conventional end-of-contract allowance plus the statutory severance pay concurrently, in that the two allowances had the same purpose. The employer had already fulfilled his legal obligations by paying the allowance provided by contract, the amount of which was higher than the benefit provided by the Labour Code.
1 ILO Convention on Termination of Employment, 1982 (No. 158).
2 Article 12(1) of Convention No. 158: “A worker whose employment has been terminated shall be entitled, in accordance with national law and practice, to: (a) a severance allowance or other separation benefits, the amount of which shall be based inter alia on length of service and the level of wages, and paid directly by the employer or by a fund constituted by employers’ contributions;”
Article 2(4) of Convention No. 158: “In so far as necessary, measures may be taken by the competent authority or through the appropriate machinery in a country, after consultation with the organizations of employers and workers concerned, where such exist, to exclude from the application of this Convention or certain provisions thereof categories of employed persons whose terms and conditions of employment are governed by special arrangements which as a whole provide protection that is at least equivalent to the protection afforded under the Convention.”
[ Download file ]