Ramarou v CO-Op Lesotho Ltd (CIV/T 2 of 89) [1991] LSCA 126 (14 October 1991)

CIV\T\2\89 IN THE HIGH COURT OF LESOTHO In the matter between:- JOHANNES MOLEKO RAMAROU Plaintiff and CO-OP LESOTHO LTD Defendant JUDGEMENT Delivered by the Honourable Mr. Justice J. L. Kheola on the 14th day of October. 1991 In this action the Plaintiff is claiming: (a) Cancellation of the contract of service between the parties. (b) Payment of the sum of twenty thousand maloti for breach of contract, (c) Payment of the sum of one thousand, nine hundred and sixty five maloti, notice money. (d) Payment of the sum of three thousand, nine hundred and thirty maloti, monthly remunerations. (e) Interest on the said amounts of money at the rate of 11% calculated from the 2ist June, 1988. (f) Costs of suit. (g) Further and\or alternative relief. -2- On the 1st April, 1988 the Plaintiff and the defendant entered into a contract of service whereby the defendant engaged the Plaintiff as an Assistant Warehouse Manager, at a monthly salary of M655-00. This is an allegation by the Plaintiff and not a fact. In his evidence and declaration the Plaintiff states that he saw an advertisement by the defendant concerning the post of an Assistant Warehouse Manager. He made an application which was accepted by the defendant. He was made to complete a form known as the carriculum Vitae\Personal details (Exhibit A ). He was given another document named a job description which set out in great detail the job he must do (Exhibit B ). Although the contract was a verbal one Mr. Mpopo who was the Regional Manager promised that he (Plaintiff) would be given a contract of service form to sign. But the form was never given to him until he was summarily dismissed in June, 1988 by the Regional Manager. No reasons were given as to why he was being dismissed summarily because he had been employed on permanent basis. It cannot be true that he was dismissed because his performance was unsatisfactory. He had not been given any warning in terms of the law. It cannot be true that he was dismissed because of old age. They knew his age when they employed him on permanent basis. The conditions regarding probation and notice were not explained to him but he was under the impression that they would appear in the contract of service. In cross-examination it was put to him that the normal -3- procedure is that a new employee would be given three months' probation and after that he would be given a letter of appointment to the permanent establishment; the Plaintiff said that the management had promised to give him some papers to sign but they never did so till he was dismissed. He says that there was no misunderstanding between the parties that he had been appointed to the permanent establishment. He admitted that he was paid by cash and not by cheque and yet all the senior staff were paid by cheques. He denied that he was paid by cash because he was a daily paid employee, The Regional Manager had told him that he would work until he reached the retirement age of sixty-five years. As he did not know the reason for his dismissal he approached the Managing Director who told him that because of his age they could not appoint him on permanent basis. Finally the Managing Director wrote a letter and confirmed that because of his age they could not appoint him on permanent establishment. The first witness called by the defendant is Rakotsoana Mohasi procedure before he can be appointed to permanent establishment. with a cheque. He said that every employee had to follow the same appointment to permanent establishment and he started being paid interview and about a week after that he received a letter of employee and was paid by cash. In December, 1988 he went for an three months. During the probation period he was a daily paid the defendant on the 15th August, 1988 and was on probation for who is employed by the defendant as a Personnel Manager. He joined -4- He handed in a letter of appointment (Exhibit D) and a form for Staff Personal details (Exhibit C). He says that the policy of the defendant is to offer a contract for a specified period to people of fifty-eight years of age. He does not deny what the Plaintiff says because he was not there when the defendant employed the Plaintiff. Rampine Motopi was employed by the defendant as a Warehouse Manager in 1987. The Plaintiff was his assistant. When the Plaintiff was brought to him he was told that he was employed on a temporary basis and he was asked to keep an eye on him in order to assess whether he knew his work. Mr. Motopi described the procedure when he was employed by the defendant as follows: He was paid on daily basis for some time and then went to the head office for interview. After that he received a letter of appointment to the permanent, establishment. He underwent medical examination before he was appointed to the permanent establishment. The Plaintiff worked with him for some time and the management indicated that his performance was unsatisfactory. Besides that he had reached the age of fifty-seven or fifty-eight years and could only be granted a contract for a specified period. It is the policy of the defendant to grant a contract for a specified period when it employs a man of that advanced age. The first issue to decide is whether the Plaintiff was -5- appointed to the permanent establishment or as a daily paid worker. The burden of proof is on the Plaintiff to prove on a balance of probabilities that he was appointed on permanent basis. The Plaintiff alleges that he was appointed on permanent basis but was not made to sign any contract or a letter of appointment. I find it altogether improbable that the defendant entered into an oral contract and appointed Plaintiff to a fairly senior position in the organization. The normal practice in all the organizations is to inform applicant for appointment to a senior position by a formal letter of appointment or in some cases to draw up a contract to be signed by both the applicant and the employer. In the instant case the Plaintiff said that the Regional Manager of the defendant kept on promising him that certain documents would be brought to him for his signature but he never brought them till Plaintiff was dismissed. I do not believe the story of the Plaintiff that such a senior appointment could be done orally. I believe the story of Mr. Motopi that the Plaintiff was appointed on a temporary basis and that he was paid on daily basis. The Plaintiff says that the Regional Manager who employed him never explained to him that he would be on probation for any period. I think this is again another indication that the Plaintiff was not employed to the permanent establishment because according to the evidence of Mr. Mohasi and Mr. Motopi a new -6- employee must serve a period of probation before he is confirmed in his position and for appointment to the permanent establishment. The defendant could not appoint a man of fifty-eight years of age without even requiring him to undergo a medical examination to ascertain the state of his health. Every employer is always very careful about the health of a new employee inasmuch as if he falls ill after he has been appointed to permanent establishment the employer may have to retire him on medical grounds and incur some expenses which he would not have incurred if he made sure on appointment that the new employee was in good health. At the time he was appointed the Plaintiff was fifty-eight years old. There is evidence by Mr. Mohasi and Mr. Motopi that the policy of the defendant is to appoint the people of that age on contract for a specified period. It is improbable that in the case of the Plaintiff the defendant departed from its normal policy and appointed a fairly old man on permanent establishment without even checking his state of health. The probabilities are in favour of the defendant that the Plaintiff was employed as a temporary employee paid on daily basis. Reference was made to the Wages and Conditions of Employment Order 1978 section 9 of which provides: (1) Where an employee fails to perform his duties or -7- is negligent in the performance thereof, he may be given a written warning by his employer and the details of his neglect or negligence shall, upon such warning being given, be entered on his record card. (2) If within a period of 18 months from the issue of a written warning an employee receives two further warnings, he renders himself liable to summary dismissal for habitual or substantial neglect of his duties pursuant to section 15 (3) of the Employment Act. 1967. (My underlining) The question to be decided by the Court is whether the word "may" in section 9 (1) of the Order is. used to confer a discretionary power or to confer an obligatory power. It seems to me that the intention of the Legislature when it enacted section 9 of the Wages and Conditions of Employment Order 1978 (Order) was to protect the rights and interests of the employee as well as those of the employer. The right of the employee to work for a particular employer with whom he has entered into a contract of service is protected to such an extent that he can be dismissed only for a lawful cause which appears in section 15 of the Employment Act 1967 (Act). Subsection 3 (c) of section 15 entitles the employer to summarily dismiss an employee for lack of skill which the employee expressly or by implication holds himself out to possess. The Plaintiff applied for this job and showed what -8- experience he had in co-operative societies. If he subsequently displayed poor performance or lack of skill the defendant was under an obligation to give him a written warning in terms of the law. The defendant did not do so but summarily dismissed the Plaintiff without any written warning whatsoever. I am of the opinion that the defendant acted unlawfully by dismissing the Plaintiff summarily without a proper warming and that the Plaintiff suffered some damages. The first is money for notice. In his evidence he claims money for three months' notice. I have already founder decided that he was a daily paid worker and in terms of section 13 (2) of the Act he is entitled to a week's notice, Because he worked six (6) days in a week he is entitled to M655 divided by 26 days which are the working days in June, 1988 and multiplied by 6 days. ( 655 x 1 = M151.15) 26 1 The Plaintiff has claimed M20,000 for breach of contract and M3,930 being his salary from July to December, 1988 when the summons was issued. In my view he is entitled to some damages for unlawful dismissal. As he was a daily paid worker or casual worker the damages must be minimal. He cannot get the large sums of money he is claiming, after all he had worked for the defendant for hardly three months as a daily paid worker. My conclusion is that the Plaintiff and the defendant entered into a contract of service and that the Plaintiff was unlawfully -9- dismissed. After considering the circumstances of this case I assess the damages at M655.00, There will be judgment for Plaintiff in the sums of M151-15 being notice money and M655-00 as damages for unlawful dismissal with costs. J. L. KHEOLA JUDGE 14th October, 1991. For Plaintiff - Mr. Mohau For Defendant - Mr, Molete