[1995] UGHC 40

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

# CIVIL SUIT NO.44O/94

JULIUS EMOMERI ² ² : ² ² ² ² ² ² •• ² ² ² •: s:s: PLAINTIFF

## VERSUS

SHELL (U) LTD. ² ² ² ² ² ² ² ² ² ² ² ² ² ² ² DEFENDANT BEFORE: THE,HONOURABLE MR. JUSTICE F. M. S. EGpNDA. NTENpE.

# JUD ^G ^M ^E NT

The plaintiff, Julius Emomeri, brought -an nation for wrongful termination of employment against, Shell Uganda Ltd., the defendant in this case. He seeks a declaration that his dismissal was wrongful, unjustified, apd or unlawful; special damages of shs. 331-,186 .126/^ and general damages covering a number of items including his salary and other emoluments for the next 20 years up to the year 2013; interest and costs of this action.

The defendant opposed, this action contending that the plaintiffs services were lawfully terminated.

³ issue-s- were framed by the parties at the commencement of the trial\* These are:-

1. Whether the dismissal was wrongful;

2. Whether the plaintiff has suffered any damage;

3. Whether the plaintiff is entitled to the reliefs sought. PW1 was the plaintiff. He is ⁴⁰ years old and prior to his termination had worked with the defendant from 1976 to 1993 in various different capacities. His last Station was Mbale Depot. On 22/4/93 he received ^a letter dated 21/4/93 from the Managing Director of the defendant suspending him from duty. Subsequently after some meeting or meetings with the Managing Director, Sales Manager and Administration Manager his services with the defendant were terminated upon payment of one months salary in lieu of notice in mid May 1993\* According'to the plaintiff he was neither informed of the reasons for his termination nor given

has ^a long list of complaints both on the nature of his termination and the payments made following his termination\*

The plaintiff testified that he was wrongly terminated as para\* 5\*0 of the Staff Standing Instructions, Ex. P.1, required that in any particular year, the employee must receive ³ warning letters before his services could be terminated, with notice\* He also attacked his termination on the ground that the defendant did not conform with the laid down grievance procedure in the Union Agreement <Ex. P.2). No reason was assigned for his termination contrary to section 6- of Part Tiro Terms *it* Conditions of Service, Ex. P.2.

The termination letter stated.:- .

^Shell Uganda Limited 14th May 1993

Mr\* J. E. Emomeri

Dear Sir,

Termination with notice

Kindly refer to discussions held in the Managing Dire ctor\*^a office on Wednesday 12/5/1993•

In accordance with para (a) of the terms of service as • contained in your letter of appointment dated 24/3/1976, your services with the Company are hereby terminated. You will receive one months pay in lieu of notice. Hence the termination takes immediate effect.

Please arrange to return all Company property, declare all collections from various customers and in particular reconcile the account of Shell Rock\* Your terminal benefits may be used to clear'any unsettled outstandings.

Yours faithfully, For: Shell (U) Ltd\*,

R. Y. Baan (sgd) Managing Director

c.c. AM, SM.

**C«C- TTrH nn .cH.-aurnt-AU\_**

On the question of termination of the plaintiffs services, the defendant called DW1, DW2 and DW4 to testify. DW1 was Jesse Gulyetonda, the ' Administration Manager of the defendant for the last ⁷ months. The witness was not around at the time of termination of the plaintiffs services but the records pertaining to that were currently in his possession. He identified Ex. P«3 and P.4. lie tendered in the format for suspension letter as found in the Company regulations. He tendered in evidence the final warning letter Ex. D.6 issued to the plaintiff by the then Administration Manager. DW2 was Saeta Ukpemo, the Sales Manager of the defendant. He was the immediate boss of the plaintiff. At the material time the plaintiff was Area Manager in charge of Sales operation in Mbale, In Ex. D.8, the witness issued instructions to the plaintiff in the way of his duties. The plaintiff failed to comply with the instructions especially on Target Sales. Whereas he was instructed to issue NIL credit to Petrol Stations an audit querry revealed that he had allowed credit invoices of up to shs. 43,880,848/=. The witness wrote Ex. D.4 to the plaintiff and did not receive a satisfactory explanation. ^A Management panel made of tho Managing Director, Finance Manager, Administration Manager, Operations Manager and the witness examined the plaintiffs explanation. The plaintiff did not attend this panel but there was another panel the plaintiff met and his explanation was not satisfactory•»

The defendant concluded after examining the plaintiffs explanation that his explanation was a cover-up. They decided to dismiss him for gross insubordination and management asked the witness to convey this decision to the plaintiff. When he conveyed it the plaintiff pleaded for mercy and appealed for a more lenient position as dismissal would lead to ^a loss of all benefits and he may not obtain gainful employment thereafter. Management considered this plea and agreed to substitute dismissal with termination on notice.

DW4 was Joseph Kamya Kavulu who at the material time was the Adminis-

^Ex. D6 after it was established that the plaintiff had cashed ^a voucher twice. Tais meant that the plaintiff was stealing money\* It justified the dism: ssal of the plaintiff but he made many appeals and he was sparedo In May 1995 new complaints arose of giving credit against instruct: ons and others.\* ^A Management panel of which the witness was ^a member considered the plaintiffs explanation, found it wanting, and decided to dismiss him\* This decision was conveyed to him\* He appealed to DW2 and the witness. The witness had more than one discussion with the plaintiff on this subject during which the plaintiff appealed for mercy. The Management panel e ^ntually agreed to a simpler method of parting Company and this was termination with notice even though summary dismissal had been the most appropriate. This was to enable the plaintiff not to lose benefits he would loose under summary dismissal. -

I have considered the evidence adduced on this question of termination of the plaintiffs employmeit. I have also considered the various submissions of counsel on the matter. I find that on finding of a very serious breach of instructions by the plaintiff, the defendant suspended the plaintiff\* This, they were entitled to do without prior notice- There is no requirement for prior notice in order for suspension to issue to an employee. Suspension is not the same as lock out or strike -hich learned counsel for the plaintiff seemed to suggest when arguing that prior notice was provided under the Union Agreement. Following investigations of the defendant and upon interviewing the plaintiff, the Management of the defendant decided to dismiss him. I accept the evidence of and DW4 that the plaintiff was given an opportunity to be heard in the matter and I reject the plaintiffs claim that much as he was invited to discuss the matter with the Managing Director- he declined as there was no Union member. Following his suspension which was in writing, I would have expected the plaintiff to lay down his requirement for Union representation in writing especially if he wanted to invoke the assistance of the Union where he was the

Chief Shop Steward^o He did not do this. He did not protest the suspension or termination in writing but a month later pocketed the payments made to him and a year later in June 199^ commenced this action.

I accept that the plaintiff discussed his fate with DW2 and DW^ and requested for a more lenient method of parting Company. This was agreed upon and he was terminated with notice. This was following the defendants Management finding him guilty of gross insubordination. Much as this was not expressly referred to in the letter, it had been the subject of meetings between the plaintiff and defendants Management. The first paragraph of the letter of termination refers to one such meeting in the Managing Director's office. I therefore find that the plaintiff was terminated for gross insubordination which puts him out of any claim under Art. 18(b) of Part Two of the Union Agreement. The defendant was entitled to terminate the plaintiff's services with or without assigning any reason, ".n this case even if the reason is not referred to in the letter it was known to the plaintiff following his meetings with DW2 and DW4 and the Management panel. The reason for this termination was communicated to the plaintiff by DV/2 and DW^. It would appear that following the plaintiffs concern about a .reference for re-employment and having successfully negotiated a reduction of dismissal to termination, the reasons for termination were not articulated expressly'in the letter.

I now come to deal with the second and third issues which is whether the plaintiff has suffered any damage, and the relief if any, to which he is entitled. nder the terms and conditions of service between the plaintiff and defendant, one months notice or one months salary in lieu of notice was sufficient to complete termination on notice. In his address to this court, counsel for the plaintiff submitted that section 2^ of the Employment Decree in a case such as the present one imposed a ³ months notice or 3 months pay in lieu of notice. He therefore claimed that the plaintiff suffered damage when he was not paid

it wo J.d appear that indeed save in employment contracts where ^a longer period of notice is provided, section *2k* imposes a minimum period of notice which employers must comply with. This provision overrides the agreement of the parties and woitld apply in the instant case. In order for the plaintiff >;o succeed on this score, th© amount sought to be ,recovered must be pleaded specifically as special damages. I have examired the Amended Plaint and there is no mention of this claim whatsoever. It arose only during the reply by plaintiff's counsel to the address by counsel for the defendant. Although a court may in circujstancee where no prejudice has been caused to the other party allow a claim not pleaded, I would hesitate to find that the defendant has i.'C: been prejudiced. I have not been addressed on this aspect. In tht result I decline to make any award under this claim.

T-.e defendant paid the pla .ntiff his dues under the provident fund\$ the pension scheme; one months salary in lieu of notice, and the money equivalent of leave due to the plaintiff less:-

- ¹ <» shso 5^9,000/= Travel advance unaccounted for. - 2« shso 2,801,500/= Housing allowance for 6/a months (16 may-51 Dec) 5c shs« 1.295,476/= Maintenance loan for 1995\*

The plaintiff cla ms a refund c-.' the said sums of money for various reasons none of which is based on a term or condition of his employment. Learned counsel for the plaintiff asserted that the defendant never conserved to these deductions ard therefore they were wrongful. The plaintiff in his testimony clair.-.d that he was not given an opportunity of looking at Company records tc verify the travel advance claims. On the house maintenance loan, tie plaintiff testified it is not written anywhere that on termination an employee must pay this loan otherwise it is paid during employment. As the foundation for repayment of this money which was employment disappeared, nothing is due to the defendants He pleaded frustration. The same plea was raised in regard to the recovery of the housing allowance. I do not find **merit in hhoca** at **rnnton+icj \_**

have been different had the plaintiff claimed he had accounted for the money or that it had never been advanced# The defendant was entitled to offset what was due to it especially as they were parting Company# ■The defendant was similarly entitled to offset whatever other¹ sums were due to it or had not been earned by the plaintiff but already received by him# The claim for refund in respect of these J items is. dismissed. The claim for pay between May ¹⁶th .to May 3>1st is similarly. dismissed.

^I 7

DW4 stated in examination in chief that an employee \*is entitled to repatriation with reasonable luggage. In cross examination he stated that this is available on request. The employee must put in a request and in the case of the plaintiff he did not put in a request at all. 'Apart from stating that he was entitled to repatriation and that when he hired transport he was refunded the cost thereof by the defendant, there is no evidence that the plaintiff made a request for transport and it was refused or delayed to be implimented. The employer would never know whether the employee intends to exeroise this right until the employee demands so. Where he fails to. request for repatriation on terminatipn he cannot hold the employer liable for the subsistance expenses or rations for the period between date of termination and when he elects to claim repatriation. In the result the claim for .house rent for 2 months in Mbale and the meal expenses for his family for the same period fail.^v

In view of my finding that he was terminated for gross misconduct the claim for severance pay cannot arise. The claim for school fees for children who had to be relocatsd in new schools in mid-term does not arise. The employer was not at fault and he had no obligation either at Law or under the contract to meet the plaintiffs relocation costs like school fees.

The plaintiff claimed gratuity for 1?. years totalling to shs. 16,t?8,150/=. He did not show that according to the Written terms of service he was entitled to'gratuity. This claim is also not grounded the Company but in my view fell short of establishing that he had a right to gratuity. From the evidence of DW4, thisj in certain instances, is arrived at by agreement between the employer and employee, DW1 stated that gratuity is due to an employee declared redundant. Gratuity is not referred to in the Union Agreement nor in the staff Standing Instructions, In reality it appears gratuity is payeable at the discretion of the employer. The plaintiff has not established that he is entitled to tha sua of shs, "16,078,150/\* claimed as gratuity.

I now come to the claim for payment of salary, housing allowance, medical alLawoJic^, contributions to the Social Security Fund, contributions to provident fund, pension fund; ham\* ownership scheme; car allowanoe\_^u lunch allowance and gratuity for the next 20 years. The plaintiff -testified that he is 40 years old. And as the retirement age is ⁶⁰ years according to the Law of Uganda, he is entitled to the above benefits until he its- 60 years old\*. The plaintiff provided ru> ^sixx- frr this claim either at Law or by agreement with the defendant.

Inspite of this, the plaintiff claimed shs. 34,000,000/= for car allowance for the next 20 years. He claimed shs, 10,400,000/= as lunch allowance for 20-years\* He clai^d shs-\* 4f80O^0OO/« medic&l allowance for the same period. He claimed gratuity of shs, 19,607,500/= due at the end of the next²⁰ years. He claimed shs. 103,440,000/= as housing allowance for the next 20 years. There was a miscellany of other claims he did not quantify. All in all as special damages he sought a sum of shs. 331,186,126/=, This claim for salary and other emoluments for the next ²⁰ years is simply preposterous, This, was not a fixed term contract expiring only when the plaintiff attained ⁶⁰ years of age. This claim ought not to have been filed in the very first instance. It had no merit whatsoever. It must be dismissed with costs.

Initially because of the preposterous nature of this portion of the claim, I was inclined to order the Advocate to bear the costs\* of this portion of the claim personally. After much thought and consideration

with advising that members of the Bar should take some care and not rush to court to prosecute any claim that may come to their clients mind. Otherwise by failing or omitting to advise- their clients, they may inflict on them, as in this ease, a heavy burden in terms of costs.

In the re-sult the plaintiffs suit is dismissed. with costs.

JEGONDA NTENDE \*

JUD \_G\_g 17/5/^95

17/3/1995 Present Ttryakiret *-A« fondant. J.* Emomeri - plaintiff.

Muyrutja - crrart clerk

Absent

**Hbog-r for th-©. plaintiff-.**

Judgment delivered\*.

F. M. S. EGONDA NTENDS

JUDGE 17/3/1995