IN THE HIGH COURT OF LESOTHO
HELD AT MASERU
In the matter between:
LESOTHO UNION OF BANK EMPLOYEES (LUBE) Applicant
BARCLAYS HANK PLC First Respondent
STANDARD HANK PLC Second Respondent
Delivered by the Honourable Mr. Justice T. Monapathi on the 11th day of Tune 2003
For the Applicant : Mrs VVM Kotelo
For the Respondents : Mr. GI Hofmann
1 have already made my ruling in this matter in favour of the Respondents in which I dismissed the claim with costs.
Applicant is the Lesotho Union of Bank Employees (LUBE). They filed an application on the 12th December 1994 praying inter alia, for an order in the following terms;
Declaring as lawful the 1991 strike action entered into by Applicant against Respondents.
Declaring as ultra vires the 1982 Act by the Prime Minister Leabua Jonathan of declaring banking as an essential service.
Declaring, as discriminatory and therefore an unfair labour practice the Respondents' act of dismissing members of Applicant and subsequently reinstating some to the exclusion of others.
Declaring as null and void and of no effect the dismissal of members of Applicant by Respondents.
This application arose out of a strike action by members of Applicant on the 22nd July, 1991. Prior thereof it is not in issue that members of Applicant have at all material times been employees of Respondent, by virtue of contract of employment entered into at different times between members of Applicant and Respondents. It is neither in issue that, one, it is the Prime Minister and not the Minister of Labour who passed an order which declared banking an essential service, and secondly that the order was to apply retrospectively from 1975 when the Essential Services Arbitration Act of 1975 was passed. The order was passed in 1982.
During the strike action Applicant members were given an ultimatum to go back to work or l»e dismissed. They did not go back to work and were summarily dismissed on the 8th August, 1991. Subsequent to the dismissals
Respondents' caused to be announced on the radio that Applicant's members should reapply. Out of those who reapplied, only a fraction were re-employed to the exclusion of the other fraction.
The issues before Court are firstly whether, the strike action was lawful. It would appear ex facie that there was a strike action and that as per Applicant this strike action was duo to failure by Respondents to engage in negotiations. Applicant relies on the case of National Union of Mineworkers (NUM v East Rand Gold and Uranium Co. Ltd 1992(1) SA 700(A), to argue that their strike action would not be unlawful where effective arbitration had failed. The important quotation is that found on page 704 of the report where it is held that,
"Fundamental collective bargaining was a duty to bargain in good faith that the strike was an essential and integral element of collective bargaining and that when an impasse had been reached in negotiations either party was free to take unilateral action."
Respondents deny in their affidavits that there had been any effective collective bargaining which they thwarted. Besides the admission of certain factual averments there is neither admission by Respondents, nor is there documentation to prove that there had been collective bargaining which was thwarted by Respondents. Save that in paragraph 5(e) of their supporting affidavit Applicants concede that,
..........no progress was made, instead the bank, came up with the |pre-condition that both the parties be involved in collective bargaining procedure. LUBE members complied with the demand of the banks much as LUBE objected to this pre-condition. LUBE member preferred the following of the old system of negotiation."
It is clear from this paragraph that Applicant members may not be less blameworthy in "thwarting" the collective bargaining procedure since they categorically say they objected to the precondition that they engage in collective bargaining procedure. So that, albeit hesitantly it may be concluded that applying this test alone, the strike action was uncalled for. But to decide fully the lawfulness or otherwise, of the strike action one must also look at the legal basis upon which the strike action would otherwise be said to have been unlawful. I am using past-participle tense in this regard to indicate my inclination towards deciding the question of unlawfulness in this context only in relation to the period at which the strike occurred. Indeed the Court will not make lawful that which was unlawful at the past time at which it occurred.
There is a point put forward even from the mouth of Applicant that the abstention from work was illegal. On the Applicant's own say-so, banking was in 1991, an essential service. That being so, the provisions of Part (iv) of the Essential Services Arbitration Act 1975 ("The Essential Services Act") applied to strike actions by bank employees. In particular in terms of section 16 and 17 strike action was illegal unless the Labour Commissioner first decided that a
trade dispute existed (sub-section 6 of the Act). Neither does Applicant allege that the Commissioner had decided that a labour dispute existed in 1991. Rather, on page 9 of the record, paragraph 5(m) and (n) Applicant says it acted contrary to the directives issued by the Commissioner and the Minister. Further in paragraph 5(1) Applicant would seem to be admitting at least that they were at fault;
"The view put forward by LUBE to the Labour Commissioner was that "both" parties had breached the law........"
I would be inclined to agree with Applicant that where the Respondents employed delaying tactics to frustrate the procedure of collective bargaining then Applicant could undertake strike action which would not have been unlawful in the circumstances. In the NUM case, (supra) Goldstone J.A. had the following to say;
"There is nothing so subversive to collective bargaining, however, as to bargain entirely or to pretend to bargain without doing so, going through the motion with no intention of reacting agreement (p.734)."
Nonetheless, Applicant should have at least attempted to prove these allegations by documentation, especially where Respondents have expressed a vehement denial.
As a general rule dismissed strikers will only be afforded protection if they employ strike as a remedy of last resort. Applicant could have argued that the strike action was functional to collective bargaining. It could be functional if it was consistent with the collective bargaining procedure. See case of NUMSA v Eim Street Prastics t/a Adv Plastics )1989) 10 ILJ 328 IC at 333H. The test to be applied in determining if the strike was functional are, just that, the strikers must have negotiated in good faith before embarking on the strike and secondly that, they Lad reached a deadlock after the negotiations. See A guide to South African Labour Law A Rychraft and B Jordan 2nd Ed. Juta & Co. At p. 219 1992.
In the case of Azuwu v Gordon Verhoef and Krause and Anor 1996(3) BLLR 279 (LC) It was held that failure to re-employ would not be unfair when dismissed strikers reserve right to apply for re-employment subject to condition that negotiations will resume over dispute which has been negotiated to deadlock. That is not the issue in casu.
Applicant also sought a declarator that the 1982 act by the Prime Minister of declaring banking as an essential service, was ultra vires. If this act by the Prime Minister is found to be ultra vires then the strike action would not be unlawful. This is so because in terms of the Essential Services Act banking was
not an essential service. But if it were, then the Act distinctly laid out the procedure for going about the labour dispute, which labour dispute had first to be declared as such by the Labour Commissioner. In the words of the Applicant the issue is therefore whether the act of declaring banking an essential service by the Prime Minister was not ultra vires and therefore of no force or effect where a statute expressly provided for functions of a junior Minister and not a senior Minister. The relevant section in the Essential Services Act is section 20:
"The Minister may by notice in the gazette, add any service to, or delete any service from the schedule to this Act."
In 1982, By Legal Notice no. 21 of 1982 the Prime Minister Dr. Leabua Jonathan declared banking, an essential service. Applicant argue that reference to Minister in the Essential Services Act means, Minister of Labour. Applicant seeks to rely on the authority of Carltona Ltd v Work Commissioner 1943 All ER 560, to submit that the Prime Minister usurped the powers of the Junior Minister and that he thus at ted ultra vires. Applicant does not however go on to challenge the constitutionality of such act except to rely on the wording of the statute which ex facie differentiates between the Minister and the Prime Minister.
Authorities abound on the question of ultra vires acts. In most cases this issue arises where a delegated or otherwise junior body performs functions which are ropugnant to the enabling authority or statute. The operative word
in most cases is that such questionable act must be in excess of the given authority. In other words the person who acts ultra vires must go beyond the bounds of his authority, usurpation of a junior authority's powers would only be ultra eires if the art itself is repugnant to the authority or statute which is itself an enabling statute to the usurper. Or rather the exercise of the powers must be beyond or in excess of such authority. See The Dictionary of Legal Words and Phrases 2nd ed. Vol.4 October 2002. Est Geekie v Union Government 1948(2) SA 502 (N) et seq.
It is worth noting however that, the case of Carltona carefully sought to underpin the principles of delegated authority in one Ministry in contradistinction to another Ministry. The authorities do not support the implication which the Applicant sought to ignore, this that, in law any powers that a Minister may have are delegated powers of the Prime Minister who is but the Principal. Perhaps one may remark that even taken literally the words Prime Minister mean, "The principal Minister of a sovereign or state." (Concise Oxford English Dictionary 10th ed. 2001 Oxford University Press) There was no definition of "Minister" in the Essential Services Act. Prime Minister could well exercise the powers of any Minister following a resolution of Cabinet. The absence of such a resolution was clearly a factual issue which the Applicant had to but failed to prove.
Applicant does not even go to the extent of saying that the declaration was tainted in that banking could not be as essential service. But it is clear from paragraph 5 of the founding affidavit that if there was any protest at all against the declaration of banking as an essential service it was by ILO and not by Applicant. So that obstensibly, it can be said that Applicant did accept that it was bound by the 1982 declaration.
Indeed where the Prime Minister did not act ultra vires and there is no challenge as to the retrospective effect of such a declaration the Applicant was bound. That in effect renders the strike action to have been unlawful. If the declaration of hanking as an essential service could not be attacked under the Essential Services Act then, in 1991, when the strike action took place, banking had properly been declared an essential service and the strike by members of the Respondents' staff was illegal.
There is also a deficiency in the declaratory prayer in that parties which have a direct and substantial interest on the relief sought have not been joined. Respondent rightly argued that these parties, having a direct and substantial interest in the outcome of the matter are entitled to be heard (I deal with this question in more detail below). See, Herbstein and Van Wynsen 4th ed. The Civil Practice of the Supreme Court of South Africa at pp 170-177.
Applicant contends that the dismissals were unlawful It does not argue that they were unfair. The lawfulness of such dismissals could only be determined by looking at the contracts of employment. That is, legislation has only been enacted to protect employees against unfair dismissal without interfering with the right of employer to hire and fire. It is trite that, at common law, employers are free to hire and fire subject only to the terms of the contracts between themselves and their employees. The Courts will only interfere if the dismissals were in breach of a contractual obligation. The sanctity of a contract in this context was best described in The New Labour Law by Brassey et al. where they remark that:
"How little the common law feels for commercial rationality is evident from the fact that it does not, in the absence of express agreement to be the contrary, require the parties to have good reason for terminating the relationship before they do so. All it demands is that they should time the termination properly and precede it by the requisite notification of notice (p.3)
I have already remarked that Applicant did not challenge the unfairness of the dismissals on the basis that they were contrary to any contractual obligation or inconsistent with the principles of natural justice. Where the strike action itself was unlawful by reason of employee's repudiation there cannot be a good case for the declaration that the dismissals were unlawful.
It is not disputed that after being summarily dismissed on the 8th August
1991, it was announced over the radio that Applicant's members may reapply for employment. Some members reapplied, but only a portion of those who reapplied were readmitted to the employment of the Bank. It is this readmission of some to the exclusion others in the same group of those who reapplied, that Applicant challenges as being discriminatory. Applicant argues that it is discriminatory because it is contrary to the provisions of the Constitution of Lesotho 1993. The. relevant sections therefrom are section 18(2) and (3) which provide respectively as follows:
"Subject to the provisions of sub section (6), no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of functions of any public office or any public authority.
In this section, the expression discriminatory means affording different treatment to different persons attributable wholly or mainly or to their respective descriptive descriptions by rare, colour, language, religion, practical or other opinion, national or social origin, property, birth or other status whereby persons of one such description are subjected to disability or restrictions to which persons of another such description are subjected to disability or restriction to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description.
It may be noted that, without admitting the legal standing of the bank as governed by the Essential Services Act as per the 1982 declaration, Applicant can hardly allude to the Bank as performing a public function in terms of the
Constitution. It is but a trading concern. Moreover an allegation that the discrimination was in terms of a certain law (as required by section 18(2) above) should he substantiated by a citation of such law. In other words there must be a prima facie basis or foundation for alleging discrimination.
Under the South African Labour Relations Act 83 of 1988, section (a) (v) makes it an unfair labour practice to re-employ some dismissed employees at the exclusion of others. But such re-employment must take place "in accordance with fair criteria and not on the ground of an employee's trade union activities." In the absence of a statutory provision to that extent then this South African provision becomes persuasive. But in this case it will only be persuasive to the extent that Applicant shows or alleges that such re-employment of its members was based on the trade union activities of the dismissed employees. An allegation for instance that those who were re-employed had not been actively engaged in enforcing unionist interest would suffice.
If there was a labour Code then, as there is now perhaps the Applicant would be relying on a provision that a period of six months is allowed for lodging a complaint for unfair dismissal - to the Labour Court (section 70 of Labour Code Order 1992) I have made the underlining to indicate that Applicant has not adopted the procedure laid out by the Labour Code in this
proceedings, and they were right by doing so. In the hypothetical case of the Labour Code perhaps the Applicant would be arguing that before the expiration of the 6 months they are "deemed" to be employees for purposes of enforcing their rights against their employers. But at Common law there is no room for entertaining such optimism, for a definition of employee ends as at dismissal. The question whether an employee remains an employee even after dismissal can clearly be answered in the negative.
Immediately one ceases to be an employee he ceases to fall in the categorisation contemplated by the above section of the Constitution, for the only characteristics he possesses are those of an applicant for a job. "Former employee" has no status in the employ of the employer besides that of attracting the favour or disfavour of the employer in deciding to hire him, which right the employer enjoys exclusively and almost absolutely, even under the Labour Code Order. In other words, the Applicant ought to have shown how they fall in the category contemplated by the Constitution. Particularly, they ought to have shown a relationship between Applicants and Respondents by showing who were discriminated against and on what ground. In no way could I find that there was discrimination where there was no relationship between Applicants' members and Respondents in the absence of a clear statement as to who were discriminated against. Where the dismissal was lawful an employee so
dismissed is not an employee of the employer who dismissed him until he is reemployed.
Applicant says that such selective re-employment is an unfair labour practice, It would only be unfair labour practice if the dismissal were preluded by a disguised motive to get rid of certain employees. In the case of Borg-Warner SA (Pty) Ltd v National Automobile & Allied Workers Union (1991) 12 ILJ it was held by the Court that,
"Clearly, if the dismissal was a mere sham or a stratagem devised by the employer in order to get rid of a specific group or class of employees, such as shop stewards, without going through appropriate dismissal procedures, the dismissal of those dismissed would be unfair labour practice and a torsion; the dismissal of those not re-employed would be unfair labour practice. (Per Mc Call J at p. 995 A.C.)
Applicant has not alleged nor sought to prove that the dismissal were such a stratagem. The import of the above case is to make this the only basis upon which selective re-employment itself could be found to constitute an unfair labour practice.
Suffice it to say that Applicant does not allege that the dismissal of the strikers itself was unfair labour practice. Selective re-employment in itself cannot form basis for unfair labour practice where it is not shown to have
emanated from unfair dismissal.
This is the obvious rational of the case of Leonard Dingier Representative Council and Others (1997) 11 BLLR 438 (LC). In that case it was held that the test to bo applied in determining unfairness of discrimination is whether it is reprehensible in terms of society's prevailing norms. Whether it is reprehensible in turn depends on the objective of the discrimination and the means used to achieve it. In other words if the object and the means are illegitimate then the discrimination would be unfair and vice versa (p.1439). Notwithstanding that the party who alleges that he was discriminated against must prove such discrimination before the burden shifts to the employer that the discrimination was unfair, (see, Germishuys v Upington Municipality (2001) 3 BLLR 345 (LC); TGWU and Ano. V Bayete Security Holdings (1999) 4 BLLR 401 (LC).
Applicant prayed that the Court declare as discriminatory the Respondents' act of dismissing members of Applicant and subsequently reinstating some to the exclusion of others, yet they do not go on to pray for the consequential prayer which is that of reinstatement. Suffice it to say that Applicant did not seem to be very careful in its use of terms. For instance it uses the words reinstatement and re-employment interchangeably as if they mean and imply the same thing. Technically the words have different implications in
employment law. Whereas re-employment simply means employing a person afresh or anew, reinstatement implies employing a person and placing him or her in a position that he or she has held as if he or she had not been dismissed. Whereas the former has a voluntary element to it, the latter is usually sanctioned by law. So that, by analogy the terms are different and have different legal implications.
Reinstatement, at the time of Applicant's coming to Court, that is three years after dismissal was as much impractical as it is now. The best relief technically speaking was damages, which is an individual and not class claim, and would best be dealt with by way of an action. Furthermore the Court would not order reinstatement without a comprehensive inquiry into the employment held by each of the Applicant's members since 1991. This, as I have said is beyond the scope of present application.
The Respondents took up the point of locus standi in limine. They were saying inter alia that Applicant was not a registered trade union since its registration had lapsed and had not been renewed. Respondent however seek to base their objection on the Labour Code Order 22 of 1992 which was not the law at the material Lime. Year of enactment of the Code notwithstanding the question is whether at the time of instituting the proceedings Applicant had locus
Other than the Labour Code Order, Respondent seek to rely on the Constitution of Applicant. They argue that the ostensible signature appended on the attached resolution by the secretary of the union constitutes a fraudulent conduct in that the signatory thereof is no longer an employee of the Respondent herein. The resolution is dated 6th November 1994.
Respondent cites Article 4(a) of the Applicant's Constitution which provides that; Membership of the union is open to all workers employed by banking institutions in Lesotho who are above 16 years of age, regardless of race, colour, creed or sex.
To argue that the trade union did not exist as a trade union Applicant simply states that it has always acted as a trade union, and has held regular meetings. Applicant thus makes a very bare denial by simply saying,
"I deny that in terms of the current law of Lesotho the Applicant has no locus standi and.....the Annexures (sic) referred to do not ........show lack of hats standi (p.68 of record)."
Without a provision in Applicant's constitution which says the union will cease to exist where subscriptions are not paid it would be difficult to decide the
existence of the Union on anomalies internal to the Union without contrasting the same to the governing law. Respondents ought to have averred that in terms of at least common law, such internal anomalies render a trade union defunct. On the same vein, Applicant ought to have done more than to allege internal inconsistencies to found an argument that the trade union existed as a legal entity.
Nonetheless, the application of the Labour Code Order inasmuch as it repealed the Trade Unions and Trade Disputes Law of 1964 seems to cover even the dispute herein in that it explicitly provided in s.171(2) that,
"Every trade union .... which is in existence and is registered as trade union .... before the date of the commencement of the Code shall within six months of that date either apply to be registered under the code or be deemed dissolved."
Section 222(2) of the Labour Code Order settles the issue in the following manner;
"An unregistered trade union or employers' organisation may sue, be sued or prosecuted under the name by which it has has been While it may not necessarily be a misapprehension that the foregoing provision may open flood gates in that it relaxes the strict requirements of registration of
trade union and other societies - the trade union cannot be said to have no locus
standi simply because its registration has not been renewed.
For the above reasons I decided that the application ought to fail with costs.
11th June 2003