‘We are unemployable, it’s a death sentence’
MASERU- The US Embassy will on May 15 battle it out with 29 of its former employees before the Directorate of Dispute Prevention and Resolution (DDPR). This follows the two parties’ failure to reach an out of court settlement believed to have been facilitated by the Ministry of Foreign Affairs and International Relations. The disgruntled ex-employees are contesting their dismissals from the mission sometime in June 2022. While they do not seek reinstatement, they want to be compensated for their service to the embassy over the years before they were pushed out. Some of the ex-employees who spoke to Public Eye say they were forced to resign and threatened to forfeit their terminal benefits. Up to 26 resigned while three decline to do so but were later also dismissed after a disciplinary hearing. One of the former workers, who preferred not to be identified, said the Ministry of Foreign Affairs was called in to negotiate so that the issue does not get publicised to protect the image of the embassy.
Court papers indicate that the 29 are challenging constructive dismissal, a situation where an employee resigns because of the employer while the three challenge unfair dismissal/termination of their contracts. The 29 ex-employees are now seeking remuneration that differs according to their service to the embassy, benefits and age. The summons ranges from M9 million to a whopping M85 million. They were all paid their severance pay but insist that they deserve compensation. The dispute was first heard on October 19, 2022 and the embassy lawyers raised two preliminary points that saw the matter failing to be heard on merits. First they argued that it was improper to have sued the embassy saying the proper party is the government of the United States of America. It was also argued on behalf of the embassy that there was an improper service.
They argued that the embassy was served at its premises in violation of its immunity and not through diplomatic channels as required by international law. The complainants, on the other hand, argued that the embassy was correctly sued adding that the fact that it (the embassy) is an employer means it can sue and be sued. Their lawyer also brought to the attention of the court that the embassy accepts that it is not a separate personality from the US government in its papers. The arbitrator ruled on November 28 that the US Embassy has the legal capacity to be sued and has correctly been sued. “By virtue of international customary law principle that a state and its agencies have an inseparable personality, the embassy has the legal capacity to be sued and has been correctly sued,” the ruling said.
However, the ruling says the embassy was erroneously served and should, therefore, be served through diplomatic channels. The arbitrator made it clear the DDPR has jurisdiction on the matter and is prepared to hear the matter once proper procedure has been followed. According to the ruling, international law requirements are complex and the case seems to be first of its kind in the jurisdiction of the DDPR. “I strive to do justice to these parties as this matter seems the first one decided in this jurisdiction, even the DDPR case management office for that matter could reasonably have been unaware of these service requirements under customary international law and how strict they must be observed.”
The proceedings were then suspended to allow for the embassy to be served through diplomatic channels, namely, the Ministry of Foreign Affairs. During the suspension, three of the aggrieved former employees say they were called by the foreign affairs ministry to give clarity on the matter but it never produced any positive result. This has led to parties now going back to the DDPR. It is alleged that embassy representatives were also called to the embassy but on separate meetings. The US Embassy in Maseru would not shed light on these latest developments in the matter, having previously also failed to respond to this paper’s questions on circumstances that led to the controversial suspension and termination of the employees’ contracts.
In an interview this week US Embassy Public Affairs Officer, Charles Blake, admitted that indeed the disgruntled former staffers parted ways with the embassy last year. He indicated that the US Embassy took appropriate action and took measures to investigate in response to reported misconduct. “The US Embassy strives to adhere to Lesotho labour laws and standards, consistent with our status as a diplomatic mission, and we value reputation in the community as an employer that demands the highest standards of integrity from its entire staff. Because this relates to an internal personnel issue, we have no further comment,” he said. Beginning the time the employees were kicked out of the embassy, they have been in dire straits, with their sacking leaving a bitter taste on some of the victims, who compare their sacking to a death sentence as they claimed they couldn’t even get testimonial letters to seek alternative employment.
The 29 male employees were fired for a range of misconduct accusations that seemed to have come from a mobile network application group by the male staffers of the embassy where they share views and opinions on various issues, not limited to work-related matters. The dismissed staff members have over the period cried foul saying they are unemployable and living with the stigma of being seen as undesirable employees after accusations such as conducting acts of terrorism and racism. They, however, appreciated that the law says an employer is entitled to dismiss employees based on various reasons and types of dismissals include, but are not limited to, fair, constructive, wrongful and unfair dismissal but the former embassy staffers believe in their case matters were taken overboard.
A source, who is part of the dismissed group, told Public Eye that their dismissal was not only unfair “but also as heartless as a death sentence” for the characters in question lost everything they worked hard for, for many years. Some even almost lost their entire life contributions and emoluments as they were about to retire next year. The source said among the dismissed staff, there were people who had just began employment with the embassy, having been employed for about five years by the time of their dismissal. “Looking at the benefits that come with being employed by an international body, especially the US embassy, when one gets a job there it means a lot to them and their families, not to mention their respective reputation in their community,” the source said.
“To be employed at the US embassy, one goes through a serious vetting process that would take up to three months and it includes, among other things, checking how one engages on social media,” the source explained. He added: “So you realise that securing employment at the embassy is also an achievement in terms of the person’s character because to pass that vetting process it says you are a trusted, reliable and well-mannered citizen, hence being employed there comes with extra perks of being respected in one’s community.” “Could it be that one WhatsApp message could be so horrible that all the 28 employees present in the group could be dismissed from duty on account of ‘misconduct’?” the source questioned.
“This is a death sentence. These people have families and dependents to support. What kind of cruel act is this of blacklisting citizens of this country in their own homeland?” he asked. The paper’s findings, in breaking the story last year, revealed that the immoral conduct charge emanated from a WhatsApp group that the male employees formed under the name ‘Molutsoaneng’ in 2018. The purpose of the group, Public Eye learned, was to enhance social cohesion between the men working for the embassy, and it was created by one of the employees on his personal phone. Some of the dismissed staff members joined the group using their work phones provided to them by the US embassy. Nonetheless, the victims are adamant that it could not have been one message and emojies which mainly led to their expulsion.
But according to Public Eye findings, the dismissed employees were put on one month paid suspension pending the embassy’s investigations. Their employment was subsequently terminated permanently. The employees were served with what they call ‘administration leave letters’ or suspension letters, which detailed the alleged misconduct, though these fell short of stipulating suspension timeframes. The letters also failed to provide a detailed explanation of what the alleged misconduct was all about. “I served the US embassy for almost my entire life; I know the embassy’s code of conduct and terms of reference as per my contract. But what we were accused of by the US embassy I find it very unfair,” said another source who is similarly a victim of the dismissal.
The source further revealed that the US embassy has refused to issue them with references for future employment. “The saddest thing ever in this whole thing is that we are now unemployable. They have destroyed us. The only thing left for us now is to die. Should we die?” quizzed the former employee. The devastated source further said: “What I find most surprising is that the government of Lesotho, international bodies and human rights activists have been tight-lipped about this act.” To date, efforts to establish the role the Ministry of Foreign Affairs and International Relations has played in finding a solution to the stalemate drew a blank until going to print.