‹ Full text of the decisionLabour 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;
(...)
| Country: | Lesotho |
|---|---|
| Subject: | dismissal |
| Role of international law: | use of international law as a guide for interpreting domestic law |
| Type of instruments used: | instrument not subject to ratification[1] |
Professional misconduct / Disciplinary interview / Employee’s right to be assisted / Reliance on an ILO recommendation as a guide for interpreting national law in order to determine the type of representation to which the employee was entitled
An employee who was accused of disposing of a registered letter was dismissed. He considered that the termination of his employment contract was void, since he had not been given the opportunity to be assisted by his lawyer during the pre-dismissal interview. The applicant’s lawyer requested that ILO Recommendation No. 166 be applied pursuant to Article 4(b) of the Labour Code, which provided that none of the provisions of the Labour Code was to be interpreted in a manner inconsistent with ratified Conventions and Recommendations of the International Labour Organization. The Court considered that, since Lesotho had not ratified ILO Convention No. 158, the provisions of Article 4(b) of the Labour Code did not apply.
Although the Court waived the application of Article 4(b) of the Labour Code, it referred to ILO Recommendation No. 166 pursuant to Article 4(c) of the same Code[2] in order to interpret the provisions of the Code pertaining to the pre-dismissal interview. It first stated the following:
“It is significant that ILO Recommendation 166 of 1982 does not specify the type of representation that an employee appearing before a disciplinary enquiry should have.”[3]
The Court then found that, although the employee was entitled to be assisted at a pre-dismissal interview, he nevertheless did not have the possibility to choose the type of representation he could enjoy. The Court held that:
“In line with Baxter’s submission, it was decided in Dlali and Others v. Railit (Pty) Ltd (1989) 10 ILJ 353 that the type of representation permitted the employee at the disciplinary hearing is at the discretion of the employer. The employee’s right to some representation is however, in terms of the guidelines provided in ILO Recommendation 166 of 1982 incontestable.”
Relying on ILO Recommendation No. 166, the Court found that the right to be assisted during a pre-dismissal interview was unchallengeable. Although it was for the employer to choose the type of representation the employee could enjoy, it was up to the latter to choose the person who was to assist him.
In this instance, the Labour Court of Lesotho ruled that the fact that the employee had not been assisted by his lawyer did not affect the validity of the interview in which he had taken part. The employee’s appeal was dismissed.
[2] Article 4(c) of the Labour Code of Lesotho: “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.”
[3] Paragraph 9 of Recommendation No. 166: “A worker should be entitled to be assisted by another person when defending himself, in accordance with Paragraph 7 of the Termination of Employment Convention, 1982, against allegations regarding his conduct or performance liable to result in the termination of his employment; this right may be specified by the methods of implementation referred to in Paragraph 1 of this Recommendation.”
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