Termination of Employment Convention, 1982 (No. 158) - Lesotho (RATIFICATION: 2001)

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Article 2(1) and (2) of the Convention. Scope of application. The Committee notes the Government’s indication that the Labour Law is still under revision. In response to the Committee’s previous request, the Government adds that, when the new Labour Law is adopted, it will afford retired and probationary employees full protection as provided by the Convention. The Committee requests the Government to keep the Committee informed of progress in the review and adoption of the revised Labour Code, and to provide a copy once it is available.

Article 2(2) and (3). Adequate safeguards in case of recourse to contracts of employment for a specified period. The Committee notes the Government’s reference to a document entitled “Termination decisions”, which it indicates contains relevant court decisions. As this document has not been received by the Office, the Committee requests the Government to transmit a copy of this attachment. It further requests that the Government to continue to provide copies of relevant judicial decisions with respect to the use of fixed-term employment contracts.

Application of the Convention in practice.Noting that the Government has not yet provided any information in this regard, the Committee reiterates its request that the Government provide information on the manner in which the Convention is applied in practice, including, for example, copies of court rulings concerning questions of principles relating to the application of the Convention or summaries of the important court rulings and available statistics on the activities of the bodies of appeal (such as the number of appeals, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided upon) and on the number of terminations for economic or similar reasons in the country.

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Article 2(1) and (2) of the Convention. Scope of application. The Committee notes that, in response to its previous comments, the Government indicates that the Labour Law Review Task Team has reached consensus that the provisions of Labour Code Order No. 24 of 1992 in section 71(1)(a) and (b) excluding probationary employees and employees beyond the normal age of retirement from protection against unfair dismissal would be repealed. The Government adds that the revised Labour Law will afford these employees full protection as provided for by the Convention. As an additional measure to avoid unfair dismissals of probationary employees, the Task Team has advised that “probation” shall not be automatic, and that the employer is required to communicate such in writing to the employee. The Committee requests the Government to provide information on measures taken to ensure that probationary employees and employees over retirement age are afforded full protection as provided by the Convention, including providing a copy of the revised Labour Law as soon as it is adopted.

Article 2(2) and (3). Adequate safeguards in case of recourse to contracts of employment for a specified period. The Committee notes the Labour Court decisions cited by the Government regarding the expectation of renewal of a fixed-term contract, including the Labour Court’s decision in LC/17/11, in which the Court applied the common law principle of legitimate expectation in the context of a claim for unfair dismissal arising from the non-renewal of a fixed-term contract. The Committee requests the Government to continue to provide copies of relevant judicial decisions with respect to the use of fixed-term employment contracts.

Application of the Convention in practice. The Committee welcomes the information provided by the Government in the 2015 record of activities and the 2014 report of the Directorate of Dispute Prevention and Resolution (DDPR), illustrating the number and areas of disputes examined and training provided for staff at all levels in different economic sectors, including on matters covered by the Convention. The Committee notes from the 2015 DDPR record of activities that disputes concerning unfair dismissals accounted for 29 per cent of the DDPR’s caseload, and that almost 87 per cent of all disputes lodged with the DDPR were resolved. The Committee requests the Government to continue providing general information on the manner in which the Convention is applied in practice, including statistics compiled over the past five years, if possible, on the activities of bodies of appeal (such as the number and nature of appeals lodged against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided) and on the number of terminations for economic or similar reasons. Please also indicate any practical difficulties encountered in the implementation of the Convention.

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Observations from the International Organisation of Employers (IOE). The Committee notes the communication of August 2014 whereby the International Organisation of Employers (IOE) included Lesotho in its observations concerning the application of the Convention.

Article 2(1) of the Convention. Scope of application. In reply to the previous comments, the Government indicates in its report that the issue of employees over the retirement age has been identified as an area of reform by the Task Team on Labour Law Review. The Committee refers to its previous comments and requests the Government to provide information on the steps taken towards ensuring that employees over retirement age are afforded full protection as provided by the Convention.

Article 2(2) and (3). Adequate safeguards in case of recourse to contracts of employment for a specified period. The Government reiterates in its report that section 68(b) of the Labour Code provides protection for employees on fixed-term contracts. Moreover, the courts have held that, in cases where there is a possibility for the renewal of the employment contract, section 68(b) of the Labour Code endorses the common law principle of legitimate expectation. Courts have pointed out that once an expectation has been created an employee could not be terminated without first being given an opportunity to be heard. The Committee notes in this regard the Labour Court’s decision LC/29/13 of 12 September 2013 supplied by the Government regarding the expectation of a renewal of a fixed-term contract. The Committee invites the Government to continue to provide copies of arbitration awards and judicial decisions showing the manner in which the protection provided by the Convention is ensured to workers engaged under an employment contract for a specified period of time.

Application of the Convention in practice. The Committee notes the references made to judicial decisions in the Government’s report on matters relating to the application of the Convention. The Committee invites the Government to continue providing updated information on the application of the Convention in practice, including examples of judicial decisions concerning questions of principle relating to the application of the Convention. Please also include information on the activities of the Directorate of Dispute Prevention and Resolution and of other bodies of appeal (such as the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided) and on the number of terminations for economic or similar reasons.

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The Committee notes the Government’s report received in November 2011, including replies to its previous comments. In its 2009 direct request, the Committee noted that, according to section 71(1)(b) of the Labour Code, employees over retirement age are precluded from claiming unfair dismissal except in respect of the invalid grounds listed in section 66(3). The Government reports that the issue of affording employees over retirement age the protection of the Convention will be brought to the attention of the National Advisory Committee on Labour at its next sitting. The Committee requests the Government to indicate in its next report the steps taken towards ensuring that employees over retirement age are afforded the full protection provided by the Convention. It also invites the Government to include statistical information on the activities of the Directorate of Dispute Prevention and Resolution and other bodies of appeal, such as information on the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided. Please also provide statistics on the number of terminations for economic or similar reasons (Parts IV and V of the report form).

Article 2(2) and (3) of the Convention. Period of probation. Adequate safeguards in case of recourse to contracts of employment for a specified period. As regards legislation applicable to workers on probation, the Government indicates that provisions contained in the Labour Code are binding, whereas the codes of good practice are non-binding instruments whose provisions are “highly persuasive”. The Committee notes that, according to the arbitration awards of the Directorate of Dispute Prevention and Resolution, Referral Nos A0240/09 and A0332/11, section 68(b) of the Labour Code (which states that the non-renewal of a contract for a fixed duration or for the performance of a specific task is to be regarded as dismissal when the contract provided for the possibility of renewal) should be interpreted in a broad sense so as to include cases in which the worker may have a “reasonable/legitimate expectation” of renewal. The Government indicates that the “possibility” of renewal provided for by the contract of employment and the “reasonable expectation” of the renewal are mutually inclusive since a worker may have a reasonable expectation of renewal only if there is such a concrete possibility, that is when the job is still available (Article 2(3)). As regards public servants, the Committee notes that the Public Service Act, 2005, the Public Service Regulations, 2008, and the Disciplinary Code of 2005 regulate the disciplinary procedure to be carried out when a public officer fails to conform to the rules and regulations governing public servants or commits any other misconduct. It further notes the High Court decisions supplied by the Government regarding unfair dismissal of public servants. According to the decision of the High Court of Lesotho No. CIV/APN/486/2006, any dismissal/termination in the public service must be “substantively” and “procedurally” fair and correct in that there should be a reason for the dismissal and the procedure must have been followed before dismissal/termination is carried out (Article 2(4)). The Committee welcomes the information provided and would appreciate continuing to receive arbitration awards and judicial decisions showing the manner in which the protection provided by the Convention is ensured to workers engaged under an employment contract for a specified period of time.

[The Government is asked to reply in detail to the present comments in 2014.]

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Article 2, paragraph 1, of the Convention. The Committee notes that in section 71(1)(b) of the Labour Code, employees over retirement age are precluded from claiming unfair dismissal except in respect of the invalid grounds listed in section 66(3). The Committee records that, subject to the specific categories listed in sub-articles (2) to (6), the Convention applies to all employed persons. The Committee requests the Government to advise it whether the provision remains in force and, if so, what steps it will take to ensure that this category of worker is afforded the full protection of the Convention.

Article 2, paragraphs 2 and 3. The Committee notes the Government’s indication that section 68(b) of the Labour Code provides protection against the use of contracts for a fixed term or a specified task in that the section makes the non-renewal of such a contract a reviewable dismissal if the “employee reasonably expected the employer to renew the contract on the same or similar terms and the employer did not renew it or offered it on less favourable terms”. Section 68(b) however does not refer to a reasonable expectation of renewal. A non-renewal is only a dismissal if the “contract provides for the possibility of renewal”. The Government is asked to clarify this difference. The Government further states that the claimants who have brought cases under this section have failed due to lack of proof. The Government is asked to provide the Committee with examples of such cases. The Committee notes the Government’s indication that probation may only be extended with the authorization of the labour commissioner which is only granted if sought by the employer on full proof of the employee’s performance. The Government also notes that in terms of section 71(1) of the Labour Code probationary employees are excluded from protection from unfair termination except in respect of a termination on the invalid grounds listed in section 66(3). It also notes that section 8(11) and (12) of the Labour Code in Gazette 5 of 2003, permits a probationary employee to make a claim for unfair dismissal in respect for any non-performance-related reason. The Government is asked to clarify the legal relationships between the Labour Code and the Code of Good Practice and to provide it with any judgements of court cases concerning the termination of probationary employees. The Committee asks the Government to clarify the meaning of section 68(b) of the Labour Code in respect of the renewal of fixed-term contracts and the legal relationship between the Labour Code and the Code of Good Practice in respect of probationary employees. It is also asked to provide any court decisions that may assist in clarifying the position of these two categories of worker in respect of the Convention.

Article 2, paragraphs 4 and 6. The Committee notes that in its reply the Government states that there are no provisions giving members of the army, the police, other disciplined forces and public officers the protections afforded by the Convention. It however states that public officers who have been unfairly dismissed may refer the cases to the High Court. The Committee requests the Government to indicate the basis upon which a case of unfair dismissal can be referred to the High Court and to provide it with any court judgements in that regard.

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The Committee notes the Government’s report received in November 2008 including detailed replies to its previous comments. It notes with interest the judgements by the labour courts of Lesotho on the matters covered by the Convention.

Article 2, paragraphs 4–6. Categories of employed persons excluded from the scope of the Convention. The Committee notes that the Government did not list any categories of worker contemplated in subparagraphs (4) and (5) in its first report. Accordingly, as the Government itself indicates in its latest report, no categories of worker have been excluded from the reach of the Convention. The Committee notes that section 2(1) of the Labour Code applies to all employees except those listed in section 2(2) which refers to the members of the army, the police force, or any other “disciplined force”. It also refers to categories of “public officer” specifically exempted by the minister. The Committee notes that since 2001 it has requested the Government to supply it with information confirming that these categories are provided with the requisite protection afforded by the Convention. In its recent report, it states that there are no provisions giving protection against unfair termination in respect of these categories of employees. The Committee urges the Government to take the necessary steps as a matter of urgency to ensure that these categories of worker are afforded the protections guaranteed by the Convention. The Government is requested to inform in its next report of any such steps taken.

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1. The Committee notes with regret that the Government has not provided any information on the application of the Convention since its first report received in December 2003, which referred in particular to Labour Code Order No. 24 of 1992 and the Labour Code (Codes of Good Practice) Notice, 2003. The Committee recalls the importance of regularly providing precise and up to date information so that it can assess the extent to which effect is given to the provisions of the Convention. The Committee trusts that the Government will be in a position to supply a report containing precise and up to date information, particularly in reply to the points raised in the Committee’s 2004 direct request, which referred to the matters below.

2. Article 2, paragraph 3, of the Convention. Adequate safeguards against recourse to contracts of employment for a specified period of time. Please provide copies of any additional legislation or relevant case law which indicates that adequate safeguards are provided against recourse to contracts of employment for a specified period of time which are aimed at avoiding the protection resulting from the Convention, and specifically to clarify the position in law and in practice with respect to trainees and apprentices.

3. Article 2, paragraphs 4 and 6. Categories of employed persons excluded from the scope of the Convention. The Committee previously noted that the Labour Code excludes from its scope members of the armed forces, the police force and “any other disciplined force within the meaning of Chapter II of the Lesotho Independence Order of 1966” (section 2(2)(a)). It further noted that other public servants have also been excluded by the Labour Court (Exemption) Order No. 22 of 1995. Please provide copies of the provisions which govern protection against termination of employment for these categories of workers and indicate whether the organizations of employers and workers concerned were consulted on such exclusions. Please also continue to provide information in subsequent reports on the effect that has been given, or is proposed to be given, to the Convention in respect of public servants, workers on probation and trainees or apprentices.

4. Article 4. Valid reason for termination. Please continue to supply information on how the provisions in section 19(2) of the Code of Practice on legitimate reasons for termination based on operational requirements of the undertaking are applied in practice.

5. Article 9, paragraph 3. Burden of proof. Please provide information on the effect given in practice to the requirement for a judicial examination of terminations for economic or similar reasons, as well as on whether the reasons invoked by employers are sufficient reasons to justify termination for economic or similar reasons.

6. Article 14. Notification to the competent authority. The Government stated in its report that effect is given to this provision of the Convention only through the “practice of some companies”. The Government is requested to submit information on how it is ensured that effect is given to this provision in practice.

7. Part V of the report form. Application of the provisions of the Convention in practice. Please provide general information on the manner in which the Convention is applied in practice, including on the consultations with workers’ representatives in case of terminations for reasons of an economic, technological, structural or similar nature (Article 13, paragraph 1), and available statistics on the activities of the Directorate of Dispute Prevention and Resolution and of the Labour Court of Appeal (Article 8) (number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided).

[The Government is asked to reply in detail to the present comments in 2008.]

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The Committee notes with regret that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its 2004 direct request, which read as follows:

1. The Committee notes the information provided by the Government in its first report on the application of the Convention. It notes, in particular, the Labour Code Order, No. 24 of 1992, as well as the newly adopted Labour Code (Codes of Good Practice) Notice, 2003. It would be grateful if the Government would supply additional information in its next report on the following points.

2. Article 2, paragraph 2, of the Convention. Safeguards. Please provide copies of any additional legislation or relevant case law which indicates that adequate safeguards are provided against recourse to contracts of employment for a specified period of time which are aimed at avoiding the protection resulting from the Convention, and specifically to clarify the position in law and in practice with respect to trainees and apprentices.

3. Article 2, paragraphs 4 and 6. The Committee notes that the Labour Code excludes from its scope members of the armed forces, the police force and “any other disciplined force within the meaning of Chapter II of the Lesotho Independence Order of 1966” (Section 2(2)(a)). It further notes that other public servants have also been excluded by the Labour Court (Exemption Order) No. 22 of 1995. Please provide copies of the provisions which govern protection against termination of employment for these categories of workers and indicate whether the organizations of employers and workers concerned were consulted on such exclusions. Please also continue to provide information in subsequent reports on the effect that has been given, or is proposed to be given, to the Convention in respect of public servants, workers on probation and trainees or apprentices.

4. Article 4. Please continue to supply information on how the provisions in section 19(2) of the Code of Practice on legitimate reasons for termination based on operational requirements of the undertaking are applied in practice.

5. Article 9, paragraph 3. Please provide information on the effect given in practice to the requirement for a judicial examination of terminations for economic or similar reasons, as well as of whether the reasons invoked by employers are sufficient reasons to justify termination for economic or similar reasons.

6. Article 14. The Committee notes that the Government stated in its report that effect is given to this provision only through the “practice of some companies”. The Government is requested to submit information on how it is ensured that effect is given to this provision in practice.

7. Part V of the report form. Please continue to provide general information on the manner in which the Convention is applied in practice, including on the consultations with workers’ representatives in case of terminations for reasons of an economic, technological, structural or similar nature (Article 13, paragraph 1), and available statistics on the activities of the Directorate of Dispute Prevention and Resolution and of the Labour Court of Appeal (Article 8) (number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided).

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1. The Committee notes the information provided by the Government in its first report on the application of the Convention. It notes, in particular, the Labour Code Order, No. 24 of 1992, as well as the newly adopted Labour Code (Codes of Good Practice) Notice, 2003. It would be grateful if the Government would supply additional information in its next report on the following points.

2. Article 2, paragraph 2, of the Convention. Safeguards. Please provide copies of any additional legislation or relevant case law which indicates that adequate safeguards are provided against recourse to contracts of employment for a specified period of time which are aimed at avoiding the protection resulting from the Convention, and specifically to clarify the position in law and in practice with respect to trainees and apprentices.

3. Article 2, paragraphs 4 and 6. The Committee notes that the Labour Code excludes from its scope members of the armed forces, the police force and "any other disciplined force within the meaning of Chapter II of the Lesotho Independence Order of 1966" (Section 2(2)(a)). It further notes that other public servants have also been excluded by the Labour Court (Exemption Order) No. 22 of 1995. Please provide copies of the provisions which govern protection against termination of employment for these categories of workers and indicate whether the organizations of employers and workers concerned were consulted on such exclusions. Please also continue to provide information in subsequent reports on the effect that has been given, or is proposed to be given, to the Convention in respect of public servants, workers on probation and trainees or apprentices.

4. Article 4. Please continue to supply information on how the provisions in section 19(2) of the Code of Practice on legitimate reasons for termination based on operational requirements of the undertaking are applied in practice.

5. Article 9, paragraph 3. Please provide information on the effect given in practice to the requirement for a judicial examination of terminations for economic or similar reasons, as well as of whether the reasons invoked by employers are sufficient reasons to justify termination for economic or similar reasons.

6. Article 14. The Committee notes that the Government stated in its report that effect is given to this provision only through the "practice of some companies". The Government is requested to submit information on how it is ensured that effect is given to this provision in practice.

7. Part V of the report form. Please continue to provide general information on the manner in which the Convention is applied in practice, including on the consultations with workers’ representatives in case of terminations for reasons of an economic, technological, structural or similar nature (Article 13, paragraph 1), and available statistics on the activities of the Directorate of Dispute Prevention and Resolution and of the Labour Court of Appeal (Article 8) (number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided).