Contributed By Kleingeld Mayet Inc.
The labour laws of Lesotho were codified with the Labour Code Order of 1992. Over the last few years, minimal changes have been made to the Labour Code Order. Most of these changes relate to health and safety, the minimum wage and the codes of good practice. Therefore, over the last 12 months there have been no major changes in the employment law.
It must also be noted that, due to political instability, Lesotho’s Parliament has been dissolved or postponed several times; thus, legislative changes in general have been very difficult without a sitting Parliament.
The government has intervened by making financial relief available to support private businesses that have been negatively affected by the COVID-19 pandemic. As Lesotho has 45,000 factory workers, the government provided LSL800 as a monthly payment to all factory workers over the period of May, June and July 2020 in order for the employees to sustain their daily basic needs.
This article discusses the Labour Code Order of 1992 (as amended) which governs the employment of employees in the Kingdom of Lesotho (hereinafter referred to as “Lesotho”). Lesotho employment laws do not distinguish between blue-collar and white-collar workers. Furthermore, there is a large population of workers engaged in unorganised sectors without any statutory benefits. The daily and weekly working hours of an employee are prescribed by law and will be discussed in more detail under 2.3 Working Hours. An employee who works more than normal working hours will be entitled to overtime compensation.
The Labour Code Order provides for three types of employment contracts:
A contract without reference to a limit of time is a contract which contains no termination date. It may be terminated by either party, subject to the provisions of the Labour Code Order concerning dismissal and notice of termination.
A contract for a fixed duration shall set forth its date of termination. Such contract shall, subject to the dismissal provisions contained in the Labour Code Order, automatically terminate on that date and no notice of termination shall be required of either party.
A contract to perform some specific work or to undertake a specified journey shall terminate upon the completion of the work or journey. No notice of termination shall be required of either party but an employer who terminates such a contract before its completion shall pay the employee all wages and other remuneration that would have been owing to the employee if he or she had continued work until the completion of the contract.
A contract of employment means a contract whether oral or in writing, express or implied, by which an employee enters the service of an employer.
There are no formal requirements to enter into an employment contract and there are no specific terms that a contract must be reduced to writing. It is advisable that the essential terms of the agreement are recorded in writing, but it is not a statutory duty.
Either party can terminate an employment contract on giving notice as follows:
Cancellation of an employment contract can be oral or written. The day of the notice of cancellation need not be included in the period of notice.
The normal number of hours per week is a maximum of 45 hours. An employee who ordinarily works a five-day week will perform nine hours of work on any day. An employee who ordinarily works a six-day week, will perform eight hours of work on five days and five hours of work on one day. No employee shall be required to work continuously for more than five hours without being given a rest period from work of not less than one hour, during which time he or she shall not be required or permitted to perform any work provided that a driver of a motor vehicle – whose sole duty during the rest period is to be or remain in charge of the vehicle and its load (if any) – shall not be deemed to be working during such rest period and a period of work interrupted by rest periods of less than one hour shall be deemed to be continuous.
There is flexibility in the instance that an employee wants to work in excess of this limit. The employer and employee can enter into an agreement in this regard.
Generally, the same laws apply to employees who perform full-time as those who perform part-time work. There are no specific terms required for part-time employment contracts.
Where the continuous nature of work so requires, an employer may request or permit an employee to work overtime in addition to the normal hours for up to 11 additional hours during one week. In respect of the additional hours, the employer shall pay the employee for such overtime at a rate not less than 1.25 times his or her normal wage rate.
The main provisions on the setting of minimum wages are contained in the Labour Code Wages (Amendment) Order, 2008. The minimum wage has been set differently for the different sectors and industries within Lesotho. There is a further classification based on the term of occupation and the skill level. Examples of the aforementioned sectors and industries include: clothing textile and leather manufacturing; construction; wholesale and retail, retail (other than small business), hospitality, service, transport and other driver’s small business, and domestic workers (including those undertaking light physical work). Wages can be paid daily, weekly or on a monthly basis depending on the type of work contract as follows:
There are no statutory provisions pertaining to the payment of bonuses, including 13th-month salaries. The payment of a 13th cheque and bonuses may be incorporated into an individual contract of employment or collective bargaining agreements.
The Government of Lesotho has established the Wages Advisory Board. This board is responsible for setting the minimum wage on an annual basis. This Board consists of representatives of the employees and employers, as well as independent members. The Board may, after consultation among its members, make a proposal to the Minister for Labour on the minimum wage level. The Minister can then decide to implement the same through a wage order. In addition, the Minister may also implement any minimum wage that has been agreed upon through collective bargaining if the parties to the negotiations represent a significant proportion of the workforce.
Labour officers (authorised by the Labour Code) are responsible for monitoring compliance of the minimum wage legislation.
An employee shall be entitled to one working day's vacation on full pay in respect of each month of continuous employment with the same employer. An employee shall be entitled in each year to a minimum of 12 working days’ vacation on full pay, to be taken at such times as may be agreed between the employer and the employee. The employee shall take at least six working days’ vacation in a continuous period during the calendar year the holiday is due.
A pregnant female employee shall give notice of her anticipated confinement by delivering her employer a written certificate signed by a medical officer or a registered nurse or midwife certifying that the employee's confinement will probably take place within six weeks from the date of the certificate. On receipt of notice, the employer shall immediately permit the female employee in question to absent herself from work until her confinement, and thereafter the employer shall not permit or require her to return to work until the expiry of six weeks immediately after her confinement. This period of absence is known as statutory maternity.
Within 21 days immediately after her confinement, a female employee shall deliver to her employer a written certificate signed by a medical officer or a registered nurse and midwife certifying the date of confinement. Where a female employee delivers to her employer a written certificate signed by a medical officer or a registered nurse or midwife certifying his or her opinion that the employee is suffering from an illness arising out of her confinement and is consequently unfit to return to work, the employer shall not permit or require her to return to work until the expiry of eight weeks immediately after her confinement. The leave before the anticipated date of confinement shall be extended by any period elapsing between the anticipated date of confinement and the actual confinement; the period of statutory maternity leave to be taken after confinement shall not be reduced on that account. Any such absence shall be deemed, for the purposes of the Code, not to interrupt the continuity of employment of the female employee concerned.
Any dismissal of any employee that takes effect during her statutory maternity leave shall automatically be an unfair dismissal. Where a female employee wishes to suckle her infant or otherwise feed the infant herself, the employer shall permit her to do so for up to one hour in a day during the hours of work for six months immediately after her return to work, following her confinement; the employer shall pay the employee her basic pay in respect of each such daily period as if it were ordinary working time. The arrangements for taking time off for nursing as provided shall be agreed upon by the employer and the employee in question.
An employee is entitled to the day off with full pay on a public holiday. If the employee works on the public holiday, he or she is entitled to be paid double their wages or, by agreement, he or she will be provided with an ordinary day off.
An employee is entitled to educational leave. It is a reasonable amount of time off with full pay for education and training which includes vocational training as well as education designed to improve the general educational level of the employee, at training or labour relations or occupational health and safety.
In Lesotho, there is no legislation pertaining to disability.
During the first six months of continuous employment with the same employer, any absence owing to sickness may be unpaid. After six months' continuous employment with the same employer an employee shall be entitled, as a minimum, to sick leave on full pay for up to 12 days in the second six months' continuous employment with the same employer. After 12 months' continuous employment with the same employer, an employee shall be entitled to sick leave on full pay for up to 12 days and thereafter to sick leave on half-pay for up to 24 days in each period of 12 months' continuous employment.
Entitlements of sick leave may not be carried forward from one year to another. An employee shall not be entitled to paid sick leave under this section unless he or she provides the employer with a certificate of incapacity signed by a registered medical practitioner or by a person in charge of a dispensary or medical aid centre acting on behalf of a registered medical practitioner. In the case of sick leave extending beyond six working days, the employer may require the employee to be examined by another registered medical practitioner, with the expenses of the examination and any travel expenses to be borne by the employer. An employee shall not be entitled to sick leave where his or her incapacity for work has been deliberately self-inflicted.
Confidentiality and Non-disparagement
There is no legal framework pertaining to confidentiality and non-disparagement which are imposed on an employee. Should a matter arise pertaining to confidentiality or disparagement, the common law principles will apply. Furthermore, the contract of employment will provide guidance in this regard.
There is no legislation or precedents pertaining to non-compete clauses which would provide an employer a right relating to this type of protection – however, restraint of trade clauses are generally enforceable in Lesotho. It will be enforceable whether an employee has been paid or not. A restraint of trade covenant contained in an employment agreement must be reasonable and it must not offend public policy. Unless the contract of employment explicitly states that an employee will be bound by a restraint, the employer has no entitlement to try and prevent him or her from working after termination of the employment relationship. In this instance, the courts will consider the terms and conditions of an employment contract in order to determine as to whether it should be enforceable. Non-compete clauses are generally determined on a case-by-case basis in Lesotho.
There is no legislative framework pertaining to non-solicitation clauses in Lesotho. In practice, the onus of proof will be on the employer. As such, the employer must prove that the employee acted wrongfully and caused harm to the employer. This firm has reviewed standard non-compete clauses in employment contracts for major international companies.
In terms of Section 52 of the Data Protection Act of 2011 it is permissible for the personal information described in the document to be transferred from Lesotho to a third-party data controller in another controller in another country.
This data transfer is permissible under the following circumstances:
According to Section 165(1) of the Labour Code Order, no employer shall employ any person in Lesotho who is not a citizen of Lesotho and no such person shall accept employment in Lesotho unless that person is in possession of a work permit issued by the Labour Commissioner.
A person who is not a citizen of Lesotho may not work as a partner in Lesotho unless that person is in possession of a work permit issued by the Labour Commissioner.
There are no registration requirements pertaining to the use of foreign workers in Lesotho. However, a foreign worker is required to be in possession of a work permit in order to be employed in Lesotho.
Trade unions, for workers and employers, are recognised in Lesotho. Workers’ and employers’ right of association is guaranteed in all sectors of the economy and for this purpose the relevant minister shall appoint a Registrar of Trade Unions and Employers Organisations who is responsible for the due performance of duties and functions of trade unions.
Representative bodies are set up to support employees and employers as both have a right of association guaranteed under law.
Representative bodies are set up to support employees and employers as both have a right of association guaranteed under law.
Trade unions and employers’ organisations must be registered with the Registrar of Trade Unions and Employers’ Organisations.
The body must apply for registration and must submit the relevant forms as set out in the Labour Code (Third Schedule). The application must be signed by at least ten members.
The body must also adopt a founding document, such as a constitution, which provides that the body will have its own legal standing and is therefore able to sue and to be sued in its own name.
The Labour Commissioner may refer a matter, where there is a trade dispute and where a collective bargaining agreement exists, for settlement in terms of the agreement.
Collective bargaining agreements are therefore recognised in Lesotho.
An employee shall not be dismissed unless there is a valid reason for termination. These reasons may be connected as to:
Any other dismissal will be deemed to be unfair and unless the employer can sustain the burden of proof to show that he or she acted reasonably in treating the reason for dismissal as sufficient grounds for terminating employment.
The required notice periods are as follows:
Severance payment is payable to an employee who has completed more than one year of continuous service with the same employer. As such, the employee will be entitled to receive, upon termination, severance pay equivalent to two weeks’ wages for each completed year of continuous service.
Payment in lieu of notice will be paid in addition to severance pay.
If the termination is done in accordance with the contract and the Labour Code then no further external authorisations are required.
The Labour Code does not define summary dismissals; however, an employee cannot be dismissed unless there is a valid reason for the dismissal. Summary dismissals will be effective if the employer can sustain the burden of proof that he or she acted reasonably as to the reason for dismissal as sufficient ground for terminating the employment.
Generally, termination agreements are allowed in Lesotho. The courts in Lesotho recognises the parties’ freedom to contract and, as such, these agreements will be valid and enforceable in so far as they are not against public policy.
There are no particular categories of employees which would be protected against dismissal.
All dismissals must meet the requirements of the Labour Code Order, 1992.
Unless an employer can show that a valid reason exists for the termination of employment, the dismissal will be unfair and therefore wrongful.
Dismissals will be valid if the reasons are connected to the capacity of the employee, the conduct of the employee and the operational requirements of the employer.
The remedies available to an employee will include payment as to the loss of income and re-instatement.
An employer may not discriminate against an employee on the following grounds:
Burden of Proof
When an employee is dismissed based on any of the anti-discriminatory grounds mentioned above, he or she will be entitled to have an opportunity at the time of dismissal to defend himself or herself against the allegations made, unless, in light of the circumstances and reason for dismissal, the employer cannot reasonably be expected to provide this opportunity. The exercise or non-exercise of this right shall not act as any bar to an employee challenging the dismissal pursuant to the terms of a collective agreement or contract of employment, or under any provisions of the Labour Code Order, 1992.
Lesotho has specialised employment forums which includes:
Class action claims are allowed, but are not very common in Lesotho.
Legal representation is allowed in all forums including in the DDPR. The DDPR is an informal forum where the parties are encouraged to resolve the dispute by way of conciliation methods. Should conciliation fail, the matter is then referred to a mediator; only after a failed mediation is the matter then referred to an arbitrator for arbitration.
Arbitrations are available in Lesotho and are part of the initial stages of dispute resolution in Lesotho. Most matters are referred to the Directorate for Dispute Prevention and Resolution. The DDPR will initially refer the majority of matters to reconciliation where the parties are encouraged to settle the matter without any further intervention. However, if conciliation is unsuccessful, the matter is then referred to a mediator for mediation; only after an unsuccessful mediation is a matter referred to arbitration.
Private arbitrations are allowed, but they are not common in Lesotho.
The Commissioner in the DDPR has the discretion to award attorney’s fees to a prevailing employee. However, this happens very rarely. In the Labour Court and the Labour Appeal court, the court has discretion to award fees in favour of the prevailing party, and in most cases the court will award fees against the unsuccessful party.