In Lesotho, the Labour Code outlines three main types of employment agreements.

Contract Without Reference to Limit of Time (Indefinite Contract)

An indefinite contract is an open-ended agreement with no set termination date. It provides the most security to the employee and can be terminated by either party following the provisions set out in the Labour Code regarding dismissal and notice period.

Contract for a Fixed Duration (Fixed-Term Contract)

A fixed-term contract specifies a predetermined end date for the employment relationship. The contract must clearly state the termination date, and renewal may require a new agreement.

Contract to Perform Specific Work or Journey (Specific Purpose Contract)

A specific purpose contract is designed for a singular project or a specific trip lasting less than two months. Once the project is completed or the journey concludes, the employment contract ends automatically.

An employment agreement in Lesotho should incorporate essential clauses to ensure clarity and protection for both employer and employee. Here's a breakdown of key clauses:

Parties to the Agreement

This section clearly identifies the employer and the employee, including their full names and business/residential addresses.

Job Title, Duties & Responsibilities

A clear description of the employee's job title, along with a detailed outline of their duties and responsibilities, is essential.

Remuneration and Benefits

This section details the employee's salary/wages, including the payment method and frequency. Additionally, it should specify any benefits offered, such as leave allowances, health insurance, or other perks.

Working Hours and Leave

The agreement should outline the standard working hours, overtime pay regulations (if applicable), and leave entitlements (annual leave, sick leave, etc.).

Termination Clause

This clause should address termination procedures for both employer and employee, following the legal requirements regarding notice periods and fair dismissal.

Dispute Resolution

The agreement may establish a process for resolving workplace disputes internally before resorting to external mechanisms.

The probationary period is a trial phase in a new employment relationship, allowing both the employer and employee to assess suitability before transitioning to a permanent position. In Lesotho, the Labour Code governs the use of probationary periods within employment agreements.

Maximum Duration of Probation in Lesotho

The Labour Code sets a four-month maximum for the probationary period. Employers cannot extend this timeframe without written permission from the Labour Commissioner.

Purpose of Probation

The probationary period allows employers to evaluate an employee's skills, performance, and fit within the company culture. It also provides employees with an opportunity to assess the role and work environment.

Termination During Probation

During the probationary period, either party can terminate the employment with one week's written notice. This offers flexibility for both the employer and employee if the role isn't a good fit.

End of Probation

If the employer doesn't terminate the employment by the end of the probationary period, the position is automatically considered permanent. Standard dismissal procedures and notice periods apply thereafter.

In Lesotho, while the Labour Code doesn't explicitly address confidentiality and non-compete clauses, employers can incorporate them into employment agreements to protect legitimate business interests. However, there are legal considerations to ensure enforceability.

Confidentiality Clauses

Confidentiality clauses aim to safeguard an employer's sensitive information, such as trade secrets, client lists, or proprietary data. Lesotho recognizes an employer's right to protect confidential information.

Key Considerations for Confidentiality Clauses:

• Specificity: The clause should clearly define what constitutes confidential information.
• Reasonable Scope: The scope of confidential information should be reasonable and not restrict the employee's ability to use general skills and knowledge gained during employment.
• Duration: The duration of confidentiality obligations after employment ends should be reasonable and limited to protecting the employer's legitimate interests.

Non-Compete Clauses

Non-compete clauses restrict an employee's ability to work for a competitor or start a competing business after leaving the company. Lesotho's Labour Code doesn't explicitly address their enforceability.

Challenges with Non-Compete Clauses:

• Reasonableness: Courts may deem non-compete clauses unreasonable if they overly restrict an employee's ability to earn a living or if the geographical or time limitations are excessive.
• Public Policy: Lesotho's labor laws prioritize an employee's right to work. Non-compete clauses that severely restrict this right may be challenged.

Recommendations:

Given the potential challenges, employers in Lesotho should carefully consider the following before including non-compete clauses:

• Necessity: Is a non-compete truly necessary to protect the employer's legitimate interests?
• Reasonableness: Ensure the clause is reasonable in scope, geographic area, and duration.