[2024] UGIC 82


# **THE REPUBLIC OF UGANDA THE INDUSTRIAL COURT OF UGANDA HOLDEN AT MBALE LABOUR DISPUTE REFERENCE NO.002 OF 2021**

*(Arising from MRTO 21/MD/2021)*

**EKASI SAUL CLAIMANT**

**V**

**FARM AFRICA RESPONDENT**

### **Before:**

The Hon. Head Judge, Linda Lillian Tumusiime Mugisha

### **Panelists:**

- 1. Hon. Charles Wacha Angulo, - 2. Hon. Rose Gidongo & - 3. Hon. Harriet Mugambwa Nganzi.

## **Representation:**

- 1. Mr. Ben Ikilai of M/s. Alaka & Co, Advocates for the Claimant. - 2. Mr. Elijah Okure of M/s. LIBRA Advocates for the Respondent.

# **AWARD**

## **Introduction**

[1] The Claimant was employed by the Respondent as a Driver/Assistant-Livestock on a fixed-term contract of four (4) years from 20/06/2018 to 29/07/2020 when his services were terminated.

Farm Africa, the Respondent Company is a charitable organization that was set up in the United Kingdom in 1985. The Organisation works with farmers and pastoralists and promotes sustainable agricultural practices, strengthens markets.

and protects the environment in rural Africa. In Uganda, it operates in Mbale, Sironko, Kanungu, Lira and Karamoja.

Its offices in the Karamoja sub-region, are in Moroto, but it carries out its work in Moroto, Napak, and Nakapiripirit, it employs various categories of staff to conduct its work, guided by its staff handbook containing the Human resources policies and guidelines.

- [2] The Claimant brought this claim against the Respondent for a declaration that the Respondent unlawfully and /or wrongly terminated his contract of employment and according to his memorandum of claim he sought the following remedies: - a) A declaration that the Respondent unlawfully and/or wrongfully terminated his contract of employment. - b) Compensation for summary termination as entitled by Law. - c) Special damages of UGX 44,597865/= - d) Accrued untaken leave. - e) General damages - f) Aggravated damages - g) Interest on (e) and (f) - h) Costs of the suit, and - i) Any other remedy appropriate.

### **Facts of the Claim**

- [3] According to the memorandum of claim on 29/07/2020, after carrying out an investigation and a hearing, the Respondent summarily dismissed the Claimant on the following grounds:- - Failure to comply with the principles of Farm Africa's code of conduct. - Unreasonable acts on insubordination - Failure to complete tasks at work and failure to carryout duties under contract.

The Claimant contends that the procedure adopted by the Respondent to summarily terminate him was contrary to the law and principles of natural justice and equity. He further contends that the termination violated and breached the terms of the contract of employment because he was not paid for the remaining part of his contract, his severance allowance, terminal benefits and leave arrears. He also claims for general damages, aggravated damages, and special damages in the following terms:

- a) Gross salary for the remaining term on his contract - b) Severance Allowance - c) Accrued/ untaken leave days 42 days **Amounting to**

28,480,000/= 16.020,000/= 297,865/= **44,597,865/=**

The Respondent on the other hand denies the assertions in the memorandum of claim and avers that the claim is incompetent, barred by Law, and that the claimant has no cause of action against it, therefore he is not entitled to the reliefs sought.

#### **Issues**

- **1. Whether the claimant was unlawfully dismissed?** - **2. Remedies available to the parties?**

#### **Submissions**

#### **Issue 1: Whether the claimant was unlawfully dismissed?**

- [4] It was submitted for the Claimant that the right to a fair hearing was enshrined in the Constitution of the Republic of Uganda of 1995 as amended under Articles 28, Article 42, which provides for the right to just and fair treatment in administrative decisions and Article 44 (c) which provides that the right to a fair hearing was nonderogable. He cited and *National Council for Higher Education v Anifa Kawooya Bangirana,* SSCA No. 4 of 2011 and *Rev Bakaluba Peter Mukasa v Betty Nambooze,* SSCA No. 4 of 2009:, in which Katureebe JSC (as he then was), cited Black's Law Dictionary for the definition of a "fair hearing" as "A hearing by an impartial and disinterested tribunal; a proceedings which hears before it condemns, which proceeds upon inquiry, and tenders judgment only after trial consideration of evidence and facts as a whole" he also cited *Russell v Norfolk* (1949) ¹ ALLER 109 in which it was stated that; "The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, and the subject matter that is being dealt with, and submitted that although the claimant was terminated on the grounds that he failed to comply with the principles of Farm Africa's code of conduct, for unbearable acts of insubordination and for failure to complete tasks at work and under the contract, his job description did not provide for the transportation of implementing partners such as AFRII. - [5] He contested the manner in which one Samuel Arop, the Programme Officer at the time, and Alice Akello who was the Senior Operations Officer conducted the disciplinary hearing by phone. According to him, both were interested parties. He


also refuted RW1's testimony that the Claimant was given the investigation report, which detailed his infractions, and that there were witnesses who testified against him. He also refuted the assertion that the Claimant was notified about the right to call witnesses and to invite a person of his choice during the hearing. This is because the purported invitation was dated 21/07/2020, for a meeting scheduled to take place on 22/07/2020 which in his view was very short notice, moreover, there is no evidence that he received the said notice and the investigation report. Citing *Airtel Uganda Limited v PeterKatongoie, LDR No. 6 of 2018, and Kanyonga Sarah vs lively Minds Uganda,* Counsel contended that, the Respondent was expected to prove that the Claimant fundamentally breached his contract by disregarding the essential conditions of his contract to warrant summary dismissal. Which is the substantive test. He also cited *Uganda Breweries Ltd v Robert Kigula* CACA No. 36 of 2016, for the same legal proposition.

He insisted that the Respondent did not comply with section 66 (now section 65 of the 7th revised edition of the Laws of Uganda, 2023) which requires that before an employer reaching a decision to dismiss an employee on grounds of misconduct or poor performance, he or she must give the employee the reason for dismissal and an opportunity for the employee to respond to the reason. He also relied on *Ebiju James v Umeme* HCCS No. 133 of 2012, for the same legal proposition and contended further that, the claimant was called on the phone and asked to prepare for the meeting within 3 minutes, that the allegations were read to him over the phone and the investigation concluded before hearing the Claimant. According to him the Respondent did not adduce any evidence against to prove the reason, therefore they failed to justify his dismissal as provided under section 68 (now section 67 of the 7th revised edition of the Laws of Uganda, 2023). Counsel further contended that whereas the Claimant was accused of failing to follow movement plans, during cross-examination RW1 did not know the distances between the areas in question and whereas the movement plan indicated that the staff were supposed to travel to Rupa, they wanted him to travel to Nadunyet or Napak which was in the opposite direction and was not included in the movement plan. He concluded that the Claimant's dismissal was substantively and procedurally unlawful because the Respondent did not show him the investigation report, it had not verified the allegations leveled against him claimant and it had not accorded him a fair hearing, contrary to the principles laid down in *Ebiju James(supra).*

In reply, the Respondent contended that the Claimant had the obligation of proving his claim in accordance with section 101-103 of the Evidence Act. It was his submission that in determining whether a dismissal was lawful, the court had to establish whether there was a reason for the dismissal, whether the procedure for termination was followed, and whether the Claimant was accorded a fair hearing before his or her termination.

According to Counsel, the Claimant's contract was lawfully terminated because he failed to carry out his duties as provided under his job description and particularly because he deviated from the movement plan when he failed to transport staff from AFRII, one of the projects implementing partners and failed to comply with Farm Africa's Code of conduct when he violated five of the seven pillars of the code of conduct.

Counsel submitted that the Claimant was mandated to provide timely and safe transport services to the project staff among others and the Claimant testified that, sometimes he failed to take staff to the field. He contested the assertion that the transportation of AFRII staff was outside the scope of the Claimant's work because they were implementing partners under the livestock for livelihood project, therefore they were project staff and by deviating from the movement plan, the claimant had breached his contract. Regarding the Claimant's failure to comply with Farm Africa's Code of Conduct, Counsel asserted that the Claimant having signed the Respondent's code of conduct marked REX 3 on the Respondent's trial bundle, on 10/10/2018, was bound by it but he breached 5 of its 7 pillars when he dropped staff at considerable distances from their destinations, requiring them to walk long distances in the midst of serious insecurity resulting from armed conflict within Karamoja region. He argued that the Claimant admitted this during crossexamination. He refuted the assertion that there were areas that were inaccessible % by vehicles because the project location was carefully selected after consultation with the District Local Government Authorities, Project staff, and Community Leaders.

Regarding unreasonable acts of insubordination, Counsel cited the definition of insubordination according to Black's Law Dictionary as 71 *willful disregard of an employer's instructions especially behaviour that gives an employer cause to terminate a worker's employment,"* and the <encyclopedia.lexroll.com> as "In the context of employment law, insubordination means an employee's refusal to comply with the lawful instructions of his or her employer. Insubordination is a valid ground for an employer to impose disciplinary actipn-

[6]

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against the insubordinate employee," and *Matt Battani v International School of Uganda* LDR No. 219 of 2017 and *Babu Mariam v Barclays Bank (U) Ltd,* LDC No. 134/201 and submitted that the Claimant adamantly refused to follow the Accountant's directives to buy hand sanitizer when he was sent to Mbale to service the vehicle. He refuted the Claimant's testimony that on that occasion no funds were released to him to buy the sanitizer because he failed to prove it. Counsel insisted that there was credible evidence to show that the Claimant refused to obey a lawful order from a superior moreover during the Covid-19 pandemic which amounted to serious insubordination. 7

He contended that the Claimant was accorded a fair hearing because he was subjected to a disciplinary hearing. He refuted the allegations that the Respondent ignored the Claimant's responses to all the allegations leveled against him because he was furnished with the investigation report detailing the evidence of the witnesses who had testified against him and was informed about his right to be accompanied to hearing by a person of his choice in accordance with the principles in *Ebiju (ibid) and section 65 of the* EA. According to Counsel, the Claimant was given between the 21st and 23rd of July to prepare his response which was sufficient time. In any case, there is no evidence to indicate that he asked for more time, and it was denied. He argued that a disciplinary hearing was not a court hearing therefore it could also be conducted through correspondences. He insisted that the hearing which was conducted between 9.30 am to 10.51 am was an indication that he was well appraised of the allegations against him, and he was prepared for the hearing. He asserted that the Respondent did not bring witnesses for security reasons because the claimant being the Respondent's security focal person was connected with the police, army, and the warriors and there were allegations of bullying and reports of the Claimant's threats to various staff, which were confirmed by the investigations and disciplinary committee. Therefore, it was justified to share the findings of the investigations and not produce the witnesses to testify.

He insisted that a disciplinary committee was not a mini court but in this case, the tenets of a fair hearing were complied with, and it would be onerous to require employers to hire external people to carry out such hearings. He further argued that *Airtel Uganda Limited v Peter Katongole, LDR No. 6 of 2018, and Kanyonga Sarah vs lively Minds Uganda,* are distinguishable with the instant case because in those cases the principles of a fair hearing were not complied with, unlike in the Therefore, Court should find that the Claimant was lawfully instant case, dismissed.

#### Analysis and decision of court

- [7] Section 2 of the Employment Act 2006 defines termination and dismissal as follows: - 1. "Termination of employment" means the discharge of an employee from an employment at the initiative of the employer for justifiable reasons other than misconduct, such as, expiry of contract, attainment of retirement age, etc; - 2. "Dismissal from employment" means the discharge of an employee from employment at the initiative of his or her employer when the said employee has committed verifiable misconduct.

Section 67 of the Employment Act provides that:

- (1) " In any claim out of termination the employer shall prove the reason or reasons for dismissal, and where the employer fails to do so, the dismissal shall be deemed to have been unfair within the meaning of section 71 - (2) The reasons for dismissal shall be matters which the employer at the time of dismissal genuinely believed to exist and which should have caused him or her to dismiss the employee." - [8] During cross-examination the Claimant admitted that the disciplinary proceedings were instituted against him, however, he was informed about the hearing a few minutes before the hearing took place on phone. He also stated that, he made a written response to the allegations and that he attended the hearing on phone. He further testified that he did not object to the procedure that was adopted and he confirmed the minutes of the disciplinary hearing of 24/07/2020. He admitted that he signed for and was bound by the staff handbook which he received at the commencement of his employment and that he was the focal point person of the Respondent on security matters. It was also his testimony that it was his responsibility to make the Movement Plan which he always followed, and that people always moved irrespective of the conflicting plan. He further testified that he could not be reached on his official email because he had handed over the computer when he was suspended from duty, however, his personal email was not blocked. - [9] The Respondent's witness RW1, Samuel Arop, the Country representative of the Respondent on the other hand testified that there were two investigations conducted. The first, being a preliminary investigation which was followed by a detailed one, and a copy of the investigations were availed to the Claimant. It was

his testimony that the Claimant was notified about the hearing by phone and email and the investigation report was also sent by email. He attributed this mode of communication to the Covid 19 Pandemic. However, the said emails and investigation report were not attached as proof of communication.

[10] We have had an opportunity to scrutinize the minutes of the disciplinary hearing which took place on Friday 24/07/2020. According to the minutes; *"Samuel Arop explained to Ekasi Saul that he is entitled to be accompanied by a colleague to the hearing and that Ekasi Saul could also come with any witnesses of his choice in support of his side of the story including a staffmemberifEkasi Saul would like to accompany him to the hearing or stand as a witness. Samuel Arop further asked Ekasi Saul if he had come with a colleague or witness(es)'*

We found no emails on the record to prove that the Respondent invited the Claimant for a hearing on 21st July and he was given up to 23/07/2020 to respond. We are therefore inclined to believe the Claimant when he stated that he was informed about the hearing by phone, a few minutes before the hearing started and are fortified by the absence of any evidence of the alleged detailed investigation report and the email that purportedly notified him about the hearing. Even if it is the position of this court (see *Grace Matovu* v *Umeme* Ltd, LDC 004/2014), that a Disciplinary hearing is not the same as a hearing before a Court of Law, the tenets of a fair hearing must be complied with in disciplinary hearing. The tenets of a fair hearing are well laid down in *Ebiju* (supra) as follows:

- 1. The accused employee must be notified about alleged acts of misconduct in a language that is understood. - 2. He or she must be given sufficient time to respond to the allegations. - 3. He or she must be given an opportunity to be heard.

It is not in dispute that the Respondent seemed to comply with these tenets save for giving the Claimant a right to sufficient time to prepare his response. We also take cognizance of the period in which this hearing took place during the covid 19 lockdown. In any case, the Claimant admitted that he made a written response to the allegations notwithstanding that he was notified at short notice, and he did not make any objection about it. To this extent, we find no reason to fault the Respondent for not following the procedure provided under section 65 of the Employment Act.

Regarding the substantive test, however, we found it hard to believe RWTs testimony regarding the Claimant's alleged deviation from the movement plan, [11]

i

because he failed to explain the distances between the areas in issue and he did not provide court with the movement plans from which the Respondent based itself to allege the claimant deviated. This is compounded by the absence of the alleged detailed investigation report upon which the respondent based itself to finally terminate him.

It is trite that an employer's right to terminate an employee he or she no longer wants cannot be fettered by the courts so long as the employer justifies the dismissal. *(Stanbic Bank v Hilda Musinguzi,* SCCA No.5 of 2016). It was also unbelievable that the Respondent was afraid to produce witnesses because of security reasons, related to the Claimant's connection with the Army, police, and warriors as the Respondent's security focal person, yet their names were detailed in the report which was not availed to court and moreover, the hearing was conducted on phone. The allegation that the Claimant had previously threatened various staff members was equally unsubstantiated. We also found nothing on the record to substantiate the allegation that the Claimant was insubordinate. In our very considered opinion, it was not sufficient for the Respondent to allege that the Claimant refused to buy sanitizer, in the absence of evidence to show that he was given the money with which to buy it.

- [12] We also found the assertion that he breached 5 out of 7 principles of the Respondent's code of conduct materially lacking because RW1 testified about the Claimant's alleged dropping of staff long distances from their destinations and nothing else. Even then this allegation was also not substantiated. In addition, RW1 was not able to describe the impugned destinations and the distances between the dropping points and the said destinations to enable this court to appreciate that they were indeed long distances. - [13] We also had an opportunity to scrutinize the claimant's job description marked REX ¹ on page ¹ of the Respondent's trial bundle, which provides in part as follows: tt - 1. Job title is driver & Assistant-Moroto Office, reporting to project Accountant and Administrator- Livestock for livelihood project who is based at the farm Africa office in Moroto. - 2. To provide timely and safe transport service to project team members and Farm Africa Visitors including: - Safely operating the farm Africa Vehicle in accordance with Uganda traffic laws

• Driving Farm Africa staff and officials to various locations across the Karamoja sub-region and on occasion further as assigned by the project Accountants & Administration or the Finance and Administration's Assistant."

We found no provisions indicating that he was responsible for transporting staff from other implementing agencies such as AFRII or that he was specifically assigned that responsibility by the Project Accountant and Administrator for the Respondent to assert that he violated and refused to obey lawful orders of his superiors. In any case, it is not disputed that the Claimant was responsible for preparing movement plans and no evidence was laid before us to show how he had deviated from the agreed plan. It is trite that before dismissing an employee, the employer must prove with credible evidence both the validity and fairness of the reasons for dismissal (see *Stanbic Bank (U) LtdvAsiimwe Deogratious,* SCCA No. 18 of 2018).

The Respondent in the instant case has not demonstrated with credible evidence that the Claimant breached essential parts of his contract to warrant his summary dismissal as was the case. In the circumstances, this is our finding that his dismissal was procedurally lawful but substantively unlawful.

#### **Issue 2:** Remedies available to the parties.

- [14] Having established that the Claimant's employment was unlawfully terminated, he is entitled to some remedies. He prayed for the following: - a) **A declaration that** the **Respondent unlawfully and/or wrongfully terminated his contract of employment.**

We have already resolved that the claimant was unlawfully terminated, it is so declared.

#### b) **Compensation for summary termination as entitled by Law.**

This court in *Ben Kimuli v Sanyu FM 2000 Ltd* LDR No. 126/2015, held that: "under Section 78 (now77) of the Employment Act cap 226 a labour officer is mandated to grant compensation to the Claimant for unfair termination and the circumstances to be considered are listed thereunder. The section limits the labour officer to award a total of compensation not exceeding 3 months' wages to the dismissed employee. This Court has held that it is not bound by this section of the law since it is not constituted by a labour officer, but it is a court of law at the same stature as High Court. Consequently, compensation awarded to an unlawfully dismissed employee by this court is measured in terms of damages computed at the court's discretion, taking into account all the circumstances with a view of putting the claimant in the position he/she would have been had he/she not been unfairly dismissed".

In line with this decision, the Claimant having been unlawfully dismissed the Court would grant him compensation in form of general damages. His contract was for a duration of 3 years and 9 months from 16/06/2018 to 31/03/2022 and by the time of his unlawful dismissal on 29/07/2020, he had served the Respondent for 2 years and 21 months. He was earning Ugx. 1,300,000/= per month. We, therefore, award him **Ugx.12,000,000/=** as general damages.

#### c) **Special damages of UGX 44,597,864/=**

It is our finding in line with *Roset Mugoya v Board of Governors Nabumali High School,* LDR No. 005 OF 2022 held that "It is a general Human resource practice that there is no pay for no work". It is also an agreed principle of the law that a claim for prospective earnings is speculative considering many uncertainties such as the death of the employee, lawful termination, and bankruptcy of an employer among others, that could disenable the completion of the contract. In the circumstances, the Claimant having ceased to work on 29/07/2020, when he was dismissed albeit unlawfully, his claim for the remaining part of his contract cannot stand. It is speculative therefore it is denied.

#### d) **Severance Allowance** of **16,020,000/=**

Section 86 of the Employment Act entitles an employee who was unlawfully dismissed to payment of severance allowance. Section 87 further provides that the formula for the computation of severance pay must be agreed between the parties. However, where there's no agreed formula, this Court in *Donna Kamuli v DFCU Bank Ltd,* LDC No. 002/2015, which is still good law, held that in such cases the employee would be entitled to payment of one month's salary for every year served.

We have already established that the Claimant worked for the Respondent for 2 years and ¹ month. He is therefore entitled to 2 months' salary amounting to **Ugx. 2,600,000/=** as severance pay.

#### **e) Accrued/ untaken leave days 42 days**

The Claimant admitted that he did not apply for leave, Section 53 of the Employment Act entitles an employee to take leave however, the period within which it is taken, must be agreed it is therefore expected that the employee should apply for the said leave and only claim if the leave is denied. The claimant in the instant case admitted that he did not apply for leave therefore we take it that


forfeited his entitlement. In the absence of any evidence to the contrary, this claim fails. It is denied.

#### f) **General Damages**

We have already awarded him compensation in form of general damages, amounting to **Ugx. 12,000,000/=.**

## **g) Aggravated damages**

The Claimant did not adduce evidence of aggravating circumstances that warrant an award of aggravated damages. Therefore, this claim is denied.

## **h) Interest on (b) and (e)**

We shall award interest on (b) and (d), (b) which is, compensation for unlawful termination, and (d) which is the award for severance pay at an interest rate of 10% per annum from the date of filing this matter in this court until payment in full.

# i) **Costs of the suit**

Each party shall bear its own costs.

Signed in Chambers at Kampala this 11th day of October 2024.

Hon. Justice Linda Lillian Tumusiime Mugisha, **Head Judge**

# **The Panelists Agree:**

- 1. Hon. Charles Wacha Angulo, - 2. Hon. Rose Gidongo & - 3. Hon. Harriet Mugambwa Nganzi. **k**

**11th October 2024 9:30 am**

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