MASERU – The Labour Court has ordered that a case in which a security manager at Lets’eng Diamond was fired for breaching security regulations start afresh before a new arbitrator.
Bofihla Makhalane is claiming M200 million from Lets’eng Diamond after he was unfairly dismissed in 2007.
The Directorate of Dispute Prevention and Resolution (DDPR) last year ruled that Makhalane had been unfairly dismissed and ordered Lets’eng Diamond to reinstate him.
But Lets’eng Diamond appealed against the DDPR judgment arguing that the arbitrator in the case had dismissed critical evidence as hearsay when it was not.
Lets’eng Diamond wanted a review of the case arguing that the arbitrator, in law and in procedure, had arrived at an erroneous verdict.
The mine said there were no grounds for the arbitrator to reach her judgment.
Makhalane was fired in July 2007 for allegedly breaching security at the mine.
Lets’eng Diamond chief executive officer, Keith Whitelock, told the DDPR that on July 7, 2007, he found two doors to the control room open.
Makhalane was also not present during a diamond evaluation exercise.
This was a serious breach of security, Whitelock said.
Whitelock told the DDPR that Makhalane had delegated the security task to Roelof Seeley, a site manager for Stallion Security, a private company engaged by Lets’eng Diamond.
Seeley told the DDPR that he was indeed absent from the site during the evaluation exercise because he had received permission to go to a ski resort.
Makhalane however denied ever allowing him to leave the mine compound.
Makhalane was found guilty of dishonesty for denying giving Seeley permission to leave the mine on the day of the evaluation by the company’s disciplinary committee.
“It is crucial to note that the 1st respondent (Makhalane) was the security manager of the applicant (Lets’eng) and as such a general overseer of applicant’s security,” reads the Labour Court’s judgment.
“Applicant’s counsel pointed out that Mr Seeley was under the control and supervision of the 1st respondent,” it said.
The court said the issue that confronted the DDPR was who actually caused the security lapse.
It said the central question that needed to be resolved was whether Makhalane had indeed given Seeley permission to leave the premises on the day of the evaluation.
A junior assistant manager at Lets’eng Tefo Mochobi testified before the arbitrator that he had over-heard Makhalane and Seeley’s conversation whereby Makhalane permitted Seeley to leave.
Mochobi said the discussion took place in one of the rooms at the mine.
Mochobi’s evidence was however dismissed as unreliable and untrue.
“The importance of this piece of evidence would be whether the conversation regarding permission to go to the ski resort ever took place,” reads the judgment.
The Labour Court said the arbitrator failed to say why and how she reached the conclusion that Mochobi was not speaking the truth.
Ts’epo Mokotjo, the assistant security manager at Lets’eng testified that Seeley approached him seeking permission to go to the ski resort.
He refused.
But he said he was surprised when Seeley told him that Makhalane had allowed him to go.
The DDPR dismissed this piece of evidence as hearsay. The Labour Court said this was irregular.
“The effect of the learned arbitrator ignoring the two pieces of evidence by Messrs Mochobi and Mokotjo brings her award within the armbit of a review procedure as it impinges on her reasoning (the process) behind her award.
“On the reasoning above, the Court has decided to set aside the DDPR award aside and refer it back to be heard de novo before a new arbitrator,” said the judgment.
The judgment was delivered by the deputy president of the Labour Court, F M Khabo.
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