Revenue Services of Lesotho V Baile Dube & 7 Others (LC/42/2023) [2023] LSLAC 170 (25 August 2023)

IN THE LABOUR APPEAL COURT OF LESOTHO HELD AT MASERU LAC/CIV/A/15/2023 LC/42/2023 In the matter between: REVENUE SERVICES OF LESOTHO APPELLANT and BAILE DUBE 1st RESPONDENT PHEKO MAFANTIRI 2nd RESPONDENT REBECCA MPOPO 3rd RESPONDENT `MALIENGOANE RALIENGOANE 4th RESPONDENT Page | 1 `MAKATISO MPEKA 5th RESPONDENT MOTEBANG MOSHEBI 6th RESPONDENT TIMELLO PUTSOA 7th RESPONDENT LIBUSENG HOALA 8th RESPONDENT Neutral citation : Revenue Services of Lesotho v Baile Dube and 7 Others [2023] LSHC 170 (25 August 2023) CORAM : KHABO J., ASSESSORS : MRS M. THAKALEKOALA MR K. MOHALE HEARD : 15th AUGUST, 2023 DELIVERED : 25th AUGUST, 2023 SUMMARY Jurisdiction - In a case in which employees challenged the fairness of a restructuring policy which requires a certain category of employees to be subjected to interviews which Page | 2 other categories were not subjected to - Court finding this to be an ‘industrial relations’ dispute that falls within the purview of Section 24 (2) (d) of the Labour Code Order, 1992 as amended by the Labour Code (Amendment) Act, 2000 which empowers the Labour Court to hear and determine ‘industrial relations’ disputes. ANNOTATIONS Statutes and subsidiary legislation Labour Code (Amendment) Act, 2000 Labour Code Order, 1992 Cases cited `Mamarame Matela and Another v Lesotho Telecommunications Authority and Others LAC/REV/03/2021 Director of Public Prosecutions v Ramoepana C of A (CIV) 49/2020 Page | 3 Peete Molapo and 16 Others v Government of the Kingdom of Lesotho and 6 Others C of A (CIV) 20/2022 Shale v Shale C of A (CIV) 35/19 Books / Articles Macdonald D., and Vandenabeele - Glossary of Industrial Relations and Related Terms, ILO, East Asia Multidisciplinary Advisory Team (ILO/EASMAT) September, 1996 Page | 4 JUDGMENT KHABO J., Introduction [1] The Appellants is herein appealing against the exercise of jurisdiction by the Labour Court in LC/42/2023, over a matter in which Respondents complained about the amendment to Applicant’s restructuring policy styled ‘Structure Alignment to Strategy (SAS)’ Guidelines in terms of which Respondents’ positions (referred to as Stage 4 positions) would be subjected to open interviews. Their complaint before the Labour Court is that the policy is unfair in that other positions have not been subjected to an open recruitment process. [2] The Appellant contends that the learned presiding officer in the court a quo erred in hearing a matter over which he had no jurisdiction. Respondents oppose this point of law. They Page | 5 aver in their originating application1 filed before the Labour Court that it is a competent forum to determine their matter in terms of Section 24 (2) (d) of the Labour Code Order, 1992 (the Code) as amended by the Labour Code (Amendment) Act, 2000 on the basis that the dispute revolves on ‘industrial relations’ as envisaged by the Section. Thus, as far as they are concerned, the Labour Court acted well within its competence in granting the interim order it granted. Lack of jurisdiction as a point of law [3] It is trite that where lack of jurisdiction is raised as a preliminary point it must be disposed of first, a principle enunciated in several decisions of the apex court and this court including Director of Public Prosecutions v Ramoepana2 cited with approval in `Mamarame Matela 1 P. 1 of the record of proceedings 2 C of A (CIV) 49/2020 Page | 6 and Another v Lesotho Telecommunications Authority and Others,3 and Shale v Shale.4 Determining jurisdiction [4] The cause of action as disclosed in the pleadings determines the jurisdiction of a court of law. According to Peete Molapo and 16 Others v Government of the Kingdom of Lesotho and 6 Others,5 in determining whether a court has jurisdiction over a matter, the presiding officer must consider the pleadings because they are the ones that disclose the cause of action in any matter. Respondents’ cause of action as reflected in para 16.1 of their originating application6 is that the amendment to SAS Guidelines purporting to subject them to a different recruitment process is not only unfair but prejudicial. It is on this account that they have approached the Labour Court to have this amendment to the SAS Guidelines set aside. 3 LAC/REV/03/2021 4 C of A (CIV) 35/2019 5 C of A (CIV) 20/2022 6 Page 12 of the record of proceedings Page | 7 Determining jurisdiction in a case in which a policy/ guideline is deemed unfair [5] A policy is generally an internal regulatory machinery. In this case, it is intended to regulate the relationship between the Appellant and its employees. In motivating his argument on the lack of jurisdiction on the part of the Labour Court to entertain the matter, Appellant’s Counsel argued that, at the very least, Respondents’ claim could lie with the Directorate of Disputes Prevention and Resolution (DDPR) as an alleged breach of contract in terms of Section 226 (2) (b) (ii) of the Labour Code (Amendment) Act, 2000, without acceding that it is. In my view, this is a complete misconstruction of the concept of a ‘breach of contract.’ [6] Respondents are not arguing that a term of the policy has been breached, but that one of its provisions is likely to be discriminatory in its application. They are also not challenging the existence or the making of the policy guidelines but that one of its terms is unfair. Page | 8 Analysis [7] As aforementioned, it is Respondents’ case that the Labour Court has jurisdiction to hear and determine this matter in terms of Section 24 (2) (d) of the Code as amended by the Labour Code (Amendment) Act, 2000 which empowers the Labour Court: to inquire into and make awards and decisions in any matters relating to industrial relations, other than trade disputes, which may be referred to it (emphasis added). [8] Having ascertained Respondents’ cause of action, the next enquiry will be to establish whether the Labour Court has jurisdiction to entertain Respondents’ claim. In my considered view, the answer lies in the definition of the term ‘industrial relations’ used in the above Section. Page | 9 [9] The Code does not define the term “industrial relations.” Resorting to the International Labour Organization (ILO) for help, it defines it as:7 The individual and collective relations between workers and employers at work and arising from the work situation, as well as the relations between representatives of workers and employers at the industry and national levels, and their interaction with the State. [10] It is worth noting that ‘trade disputes’ have been excluded from the application of Section 24 (2) (d) of the Code as amended by the Labour Code (Amendment) Act, 2000. Though not directly relevant to this dispute, it is prudent to traverse it to, perhaps, clear any misunderstanding that could arise in the interpretation of this Section. A ‘trade dispute’ is defined by the Code as: 7 Macdonald D., and Vandenabeele Glossary of Industrial Relations and Related Terms, ILO, East Asia Multidisciplinary Advisory Team (ILO/EASMAT) September, 1996 - www.ilo.org, accessed on 24th August, 2023 Page | 10 … any dispute or difference between employers or their organisations and employees or their organisations, or between employees, connected with the employment or non - employment, or the terms of the employment, or the conditions of labour, of any person. [11] The term ‘trade disputes’ does not relate to disputes brought by employees in their individual capacity. It refers to the collective, so it clearly excludes Respondents who approached the Labour Court in their individual capacity. The definition is more refined in the ILO Glossary,8 namely, that ‘trade disputes’ relate to: disagreement between labour and management arising from an inability of both parties to resolve their differences … These are the kind of disputes that may lead to a strike. 8 ibid Page | 11 [12] It is my considered opinion that this matter falls within the jurisdiction of the Labour Court in terms of Section 24 (2) (d) of the Code. A policy relating to employment naturally dictates the terms that will regulates the employer/ employee relationship. Thus, any dispute arising therefrom ‘relates to industrial relations’ as anticipated by Section 24 (2) (d) of the Code. The SAS policy guidelines regulate terms and conditions of employment between the Appellant and the Respondents, and naturally affects their ‘industrial relations.’ An industrial relations system aims to provide a harmonious relationship between employers and employees. Conclusion [13] An attack on the fairness of a policy relating to an employment relationship surely relates to ‘industrial relations.’ Any dispute emanating therefrom squarely falls under Section 24 (2) (d) of the Code as amended by the Labour Code (Amendment) Act, 2000. The court finds the Page | 12 Labour Court to be the appropriate forum to hear and determine the matter as prescribed by statute. ORDER The court, therefore, makes the following order: a) The appeal is dismissed; and b) Costs shall follow the event. F. M. KHABO JUDGE For the Appellants : Adv., R. Ntema For the Respondents : Adv., L. Masoeu Page | 13