LESOTHO Electricity Company (LEC) managing director, Thabo Nkhahle, has petitioned the Constitutional Court to block the company’s board from replacing him, claiming his contract only expires in February 2023.
The LEC board had resolved to terminate Mr Nkhahle’s contract effective from 1 April 2020 after having put him on fully paid suspension from 14 December 2018 for allegedly flouting regulations when he solicited work permits for South Africans hired by the LEC. He had served as MD from 13 February 2018 until his suspension.
He continued to earn his whooping M130 000 monthly salary during his suspension, housing allowance of 20 percent of his gross salary and M3 000 worth of airtime monthly, among other benefits.
Although Mr Nkhahle never challenged his suspension, he has now approached the court after the board decided to dismiss him permanently. His co-applicant in the matter is the finance director, Refiloe Pule, who was also suspended for working in cahoots with Mr Nkhahle in 2018. Mr Pule was dismissed last month although his contract was set to expire on 31 May 2021.
The duo’s initial suspension was scheduled to lapse on 11 January 2019 but was extended to 31 March 2019 before being extended again indefinitely on 1 April 2019.
The LEC board, the LEC, the Minister of Energy and Meteorology, the Minister of Law and Constitutional Affairs and the Attorney General are cited as the first to fifth respondent respectively.
The matter is yet to be allocated a hearing date while the three presiding judges are yet to be secured.
Messrs Nkhahle and Pule argue that their dismissal before the expiration of their contracts is a breach of their constitutional rights hence should be nullified.
“The dismissal of the applicants by the first respondent (LEC board) from the employment of the second respondent (LEC) be declared a breach of the applicants’ right to protection of the law and equal protection of the law in terms of section 19 of the constitution of Lesotho,” part of their prayers read.
“The said dismissals be set aside on account of being unconstitutional. In the event that… first and second respondents have employed different persons in the positions of managing director and finance director to replace the applicants, in such even applicants be awarded constitutional damages…”
In his founding affidavit, Mr Nkhahle argues that the disciplinary process had not been completed when they were fired. He said even if they were to be found guilty in the disciplinary process, the charges they had not been slapped with did not constitute dismissible offences.
“The due process of the law in labour or employment matters had begun and was well on course save for the unavoidable delays.
“We are legally advised and verily believe the same that the procedure that had to be followed was that, if we were found not guilty, we would continue with our work and if found guilty, penalties could be imposed.”
In the event that they were convicted and were dissatisfied with the conviction or penalty, they said they could appeal internally and later approach the labour tribunals if the internal procedures did not give them the desired results.
He said they were shocked to receive dismissal letters from the LEC board on 14 February 2020 while their disciplinary hearing was still pending. He said the behaviour was wrong as they were not afforded a chance to make written representations.
The duo was later called for contract termination negotiations but eventually they eventually fell through after the negotiating team relaunched moves to dismiss the applicants.
He said they had been called for contract termination negotiations which fell through after the LEC negotiating team relaunched moves to dismiss them.
They had then been persuaded to resign in exchange for separation packages. However, they were surprised to be served with dismissal letters after presenting a counter offer.
We in turn made counter offers. Instead of negotiating the matter further, the first and second respondents reinstated their unprocedural and unlawful dismissal, masquerading as a mutual separation offer, to which we reacted by seeking clarification of ambiguities contained therein. Board chair Professor Molibeli Taele acknowledged receipt of the letters which were sent via email.
“However, instead of responding to our letters, the first respondent ignored but sent employees of the second respondent to dispossess me of a vehicle that had been allocated to me in terms of the contract of employment.”
He said the events clearly show that the LEC and its board were flouting labour laws and acting with impunity.