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Court orders bank to pay former employee

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Nat Molomo

MASERU — The Labour Appeal Court has ordered a local bank to pay M31 272 in severance pay to a former worker who resigned days after some cash went missing.
Selloane Mahamo, who was employed by Nedbank as a teller, was suspended from duty on March 10, 2006 to allow investigations into circumstances
surrounding a shortfall of M4 000.
On April 2, 2006 Mahamo resigned but the bank rejected the resignation.
The bank then called Mahamo for a disciplinary hearing on April 10, 2006.
When Mahamo refused to submit herself to a disciplinary hearing the bank told her she had been fired and could not give her the severance pay.
Mahamo then appealed to the Directorate of Dispute Prevention and Resolution (DDPR) claiming “constructive dismissal” but lost the case. Mahamo appealed to the Labour Court which also threw out her case, forcing her to take her fight to the Labour Appeal Court.
This time she prevailed.
In his judgment Justice Kananelo Mosito of the Labour Appeal Court berated the Labour Court and the DDPR for misdirecting itself when it decided to consider the lawfulness or validity of Mahamo’s resignation.
He said the court and the DDPR should have only considered the “fairness or otherwise of the dismissal and the relief in the nature either of reinstatement or compensation”.
“The DDPR did not consider these issues and in so doing it misdirected itself. Similarly, the Labour Court erred in declining to intervene in a case in which the DDPR had misdirected itself by not exercising the powers conferred upon it,” Justice Mosito said.
“The Labour Court ought to have reviewed the decision of the DDPR on account of this error of law which materially affected the DDPR’s decision.”
He said the fact that Mahamo had resigned before any disciplinary action against her meant that “the purported dismissal was of no consequence” and that she “still remained entitled to severance pay”.
“We therefore uphold the appeal with costs,” Justice Mosito said.
“Appellant is to be paid severance pay in the sum reflected in paragraph 22 of this judgment.”
“We have to emphasise that it is the constitutional right of any employee to tender resignation at any time and leave the employer with the remedy of damages as the case may be,” he said.
“It is apparent that there was a clear misdirection on the part of the DDPR consequent upon the instruction by the Labour Court that the DDPR should consider the lawfulness or validity of the resignation and the benefits due, which is not what section 73 of the Labour Code confers upon the DDPR to consider,” Justice Mosito said.
“The section requires the DDPR to consider the fairness or otherwise of the dismissal and the relief in the nature either of reinstatement or compensation,” he said.
The long-running case was first heard on June 5 2006 where the arbitrator of the DDPR ruled that Mahamo had “resigned of her own accord” and could not be awarded the severance pay she sought.
Mahamo then filed an application for review and the matter was sent back to the arbitrator at the DDPR with a directive by the Labour Court that the arbitrator should pronounce himself on the question of “benefits” that the applicant sought. The Labour Court had also pointed out that the DDPR ought to have determined whether the resignation was lawful or not.
It ruled that only after determining the legality of Mahamo’s dismissal could the DDPR decide whether she was entitled to her severance package or not.
The case, the Labour court ordered, could not be re-opened.
But Mahamo argued that since the arbitrator had already ruled that she had resigned on her own volition the only issue left to be determined was whether she was entitled to severance pay or not.
Mahamo’s lawyer, Advocate Borenahabokhethe Sekonyela, had argued that to address any other issues would amount to re-opening the case which the Labour Court had ordered against.
However, the arbitrator believed that to determine the issue of whether benefits were due to the appellant or not he had to determine whether “the dismissal was legal, (valid) or not before determining the question of benefits”.
Advocate PJ Setlojoane appeared for the bank.

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