Labour Court of Lesotho, Palesa Peko v. The National University of Lesotho, 1 August 1995, No. LC 33/95
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
Workers with family responsibilities
Direct resolution of a dispute on the basis of international law
Non-ratified treaty;1 Instruments not subject to ratification2
Absence of an employee because her son was ill/ Suspension of the employee/ Cancellation of the suspension/ Direct resolution of a dispute on the basis of international law
An employee had been absent from work for two weeks to look after her son, who had had an appendix operation. She had said that she was ill in order to stay at home and look after him. Her employer had suspended her and had deducted the amount corresponding to her period of absence from her wages.
The Labour Court established first of all that there was a deficiency in national legislation in this field:
“Under Section 4 of the Code dealing with “principles used in the interpretation and administration of the Code”, it is provided in paragraph (c) that:
“In case of ambiguity, provisions of the Code and of any rules and regulations made there under 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 International Labour Organization”.”
The Court then referred to ILO Convention No. 156 concerning Workers with Family Responsibilities to remedy the deficiencies in national legislation, relying in particular on Articles 1, 2, 3 and 4(b) of that Convention.3
And finally, the Court founded its authority to apply the Convention on Article 9 of that instrument:
“In terms of Article 9 of the convention the provisions of the convention may be applied by laws or regulations, collective agreements, work rules, arbitration awards, court decisions or a combination of these methods. This court is therefore empowered to give effect to the provisions of the convention and the recommendation.”
On these grounds the Labour Court of Lesotho applied the provisions of ILO Convention No. 156 directly, ruling that the suspension of the complainant was void and ordering her employer to pay her the wage due for the period corresponding to the time she had spent with her son.
1 ILO Convention on Workers with Family Responsibilities, 1981 (No. 156).
2 ILO Recommendation on Workers with Family Responsibilities, 1981 (No. 165).
3 Article 1 of Convention No. 156: “1. This Convention applies to men and women workers with responsibilities in relation to their dependent children, where such responsibilities restrict their possibilities of preparing for, entering, participating in or advancing in economic activity.
2. The provisions of this Convention shall also be applied to men and women workers with responsibilities in relation to other members of their immediate family who clearly need their care or support, where such responsibilities restrict their possibilities of preparing for, entering, participating in or advancing in economic activity. (…)”
Article 2 of Convention No. 156: “This Convention applies to all branches of economic activity and all categories of workers.”
Article 3 of Convention No. 156: “1. With a view to creating effective equality of opportunity and treatment for men and women workers, each Member shall make it an aim of national policy to enable persons with family responsibilities who are engaged or wish to engage in employment to exercise their right to do so without being subject to discrimination and, to the extent possible, without conflict between their employment and family responsibilities.
2. For the purposes of paragraph 1 of this Article, the term discrimination means discrimination in employment and occupation as defined by Articles 1 and 5 of the Discrimination (Employment and Occupation) Convention, 1958.”
Article 4 of Convention No. 156:
“With a view to creating effective equality of opportunity and treatment for men and women workers, all measures compatible with national conditions and possibilities shall be taken:
(a) to enable workers with family responsibilities to exercise their right to free choice of employment; and
(b) to take account of their needs in terms and conditions of employment and in social security.”
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