Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Termination of Employment Convention, 1982 (No. 158) - Lesotho (Ratification: 2001)

Other comments on C158

Observation

Direct Request

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The Committee notes the Government’s report received in November 2011, including replies to its previous comments. In its 2009 direct request, the Committee noted that, according to section 71(1)(b) of the Labour Code, employees over retirement age are precluded from claiming unfair dismissal except in respect of the invalid grounds listed in section 66(3). The Government reports that the issue of affording employees over retirement age the protection of the Convention will be brought to the attention of the National Advisory Committee on Labour at its next sitting. The Committee requests the Government to indicate in its next report the steps taken towards ensuring that employees over retirement age are afforded the full protection provided by the Convention. It also invites the Government to include statistical information on the activities of the Directorate of Dispute Prevention and Resolution and other bodies of appeal, such as information on the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided. Please also provide statistics on the number of terminations for economic or similar reasons (Parts IV and V of the report form).

Article 2(2) and (3) of the Convention. Period of probation. Adequate safeguards in case of recourse to contracts of employment for a specified period. As regards legislation applicable to workers on probation, the Government indicates that provisions contained in the Labour Code are binding, whereas the codes of good practice are non-binding instruments whose provisions are “highly persuasive”. The Committee notes that, according to the arbitration awards of the Directorate of Dispute Prevention and Resolution, Referral Nos A0240/09 and A0332/11, section 68(b) of the Labour Code (which states that the non-renewal of a contract for a fixed duration or for the performance of a specific task is to be regarded as dismissal when the contract provided for the possibility of renewal) should be interpreted in a broad sense so as to include cases in which the worker may have a “reasonable/legitimate expectation” of renewal. The Government indicates that the “possibility” of renewal provided for by the contract of employment and the “reasonable expectation” of the renewal are mutually inclusive since a worker may have a reasonable expectation of renewal only if there is such a concrete possibility, that is when the job is still available (Article 2(3)). As regards public servants, the Committee notes that the Public Service Act, 2005, the Public Service Regulations, 2008, and the Disciplinary Code of 2005 regulate the disciplinary procedure to be carried out when a public officer fails to conform to the rules and regulations governing public servants or commits any other misconduct. It further notes the High Court decisions supplied by the Government regarding unfair dismissal of public servants. According to the decision of the High Court of Lesotho No. CIV/APN/486/2006, any dismissal/termination in the public service must be “substantively” and “procedurally” fair and correct in that there should be a reason for the dismissal and the procedure must have been followed before dismissal/termination is carried out (Article 2(4)). The Committee welcomes the information provided and would appreciate continuing to receive arbitration awards and judicial decisions showing the manner in which the protection provided by the Convention is ensured to workers engaged under an employment contract for a specified period of time.

[The Government is asked to reply in detail to the present comments in 2014.]