[2024] UGIC 88


# THE REPUBLIC OF UGANDA IN THE INDUSTRIAL COURT OF UGANDA HOLDEN AT JINJA LABOUR DISPUTE APPEAL No. 002 OF 2023

(Arising From Labour Complaint Kayunga)

.... APPELLANT KAKIRA SUGAR LIMITED ....................................

WALTER AWOKO......................... **RESPONDENT**

### Before:

The Hon. Head Judge Linda Lillian Tumusiime Mugisha.

## **Panelists:**

- 1. Hon. Harriet Mugambwa Nganzi, - 2. Hon. Frankie Xavier Mubuuke & - 3. Hon. Ebyau Fidel.

### **Representation:**

- 1. Ms. Kevin Amujong of M/s. Okalang Law Chambers & Legal Consultants for the Respondents. - 2. Mr. Dhakaba Ishaq of M/s. Dhakabu and Nkuutu Co. Advocates for the Claimant.

# **AWARD**

# **Background**

According to the mediation report that was filed as the record of proceedings before $[1]$ the Labour officer Kayunga, Ms. Eva Nandawula, the Respondent was employed by the Appellant as a superintendent. From the record, it was unclear how long he served

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the Appellant. However, he was dismissed on 09/09/2022 on allegations of theft of 100 bags of fertilizers from the Appellant. The Appellant also reported the theft to the Central police station. Before his dismissal he was suspended for 30 days and directed to report to the Human Resources Officer at Kazinga, every Tuesday. He only reported on 19/07/2022 and 27/07/2022, and on both occasions, the Human Resources Officer was absent.

He filed a complaint against the Appellant before Ms. Eva Nandawula, Labour Officer Kayunga for compensation of Ugx. 100,000,000/=, for illegal dismissal from employment. The Labour Officer chose to mediate the matter but also rendered an arbitral decision. She declared that the Respondent's dismissal was illegal and ordered that he be reinstated pending the hearing by the Court. However, her report did not indicate which Court was supposed to carry out the hearings. She also advised the party that was not satisfied with her decision to lodge an appeal before the Industrial Court.

[2] The Appellant, being dissatisfied with the Labour Officer's decision, filed a notice of appeal in the Industrial Court in accordance with Section 93 of the Employment Act 2006, hence this Appeal.

### **Grounds of Appeal:**

- **1.** The Labour officer erred in law when she delivered her decision on 18/05/2023 but dated the same 13/05/2023, thereby rendering the decision null and void. - 2. The Labour Officer erred in law when she held that the Respondent was illegally dismissed. - 3. The Labour Officer erred in law when she acted as an arbitrator in a mediation process. - 4. The Labour officer erred in law when she failed to give reasons for her decision. - 5. The labour officer erred in law when she of service as a basis of her decision when the complaint had not relied on it in his complaint and when the said management staff's terms and conditions of service were not exhibited /produced at the mediation. - 6. The Labour officer erred in law when she disregarded section 63 of the Employment Act and relied on section 9 of the Management Staff Terms and Conditions of Service, thereby causing a miscarriage of justice.

- 7. The Labour officer acted illegally and without jurisdiction when she ordered the reinstatement of the Respondent by the Appellant in total disregard of the Employment Act. - [3] After carefully perusing the grounds of appeal, we decided to resolve Ground 3, which would dispose of the entire Appeal.

#### **Ground 3: The Labour Officer erred in law when she acted as an arbitrator in a mediation process.**

It was submitted for the Appellant that the lower record clearly indicated that the subject of the Labour Officer's report was **"Mediation meeting to resolve Labour Complaint between Walter Awoko and Kakira Sugar Limited".**

Counsel contended that the Labour officer conducted mediation proceedings because neither of the parties filed pleadings or witness statements, and no evidence was taken on oath. No one was cross-examined, and most importantly, there was no consent by the parties to proceed by Arbitration; therefore, it was wrong for the labour officer to render a decision as if the matter were an Arbitration.

**[4]** He cited *Protea Hotel Kampala v Nyinakiiza,* LDA No. 015 of 2015, in which the Appeal succeeded because the labour officer had converted mediation proceedings by rendering a decision. He contended that in addition, the Respondent was equally not satisfied with the labour officers' decision because Labour Reference No. 012 of 2023, which he filed in this Court, was dismissed for being improperly brought before the court, as a reference and because it ought to have been brought as an Appeal. He relied on *Makonya Properties Ltd v Attorney General,* HCCS No. 735 of 20027, for the legal proposition that a court cannot grant prayers that have not been pleaded by a claimant/plaintiff. In the circumstances, the Labour officer's decision should be set aside.

# **Decision of Court**

- [5] Section 94 provides that: - 1) A party who is dissatisfied with the decision of the labor officer on a complaint made under this act shall appeal to the Industrial Court in accordance with this Section.


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- 2) An appeal under this section shall lie on a question of law and with leave of court on a question of fact forming part of their decision over labour officer (emphasis ours) - 3) The Industrial Court shall have the power to confirm, modify, or overturn any decision from which an appeal is taken, and the decision of the Industrial Court shall be final. - 4) The Minister may, by regulations, make provision for the form which the appeal shall take.

[6] Section 12(1) (a) of the Employment Act mandates a Labour officer to settle or attempt to settle Labour disputes filed before him or her by way of conciliation, arbitration, or adjudication. It provides as follows:

*"12. Labour officer's power to investigate and dispose of Complaints*

*(1) A Labour officer to whom a complaint has been made under this Act shall have the power to a) investigate the complaint and any defence put forward to such a complaint and to settle or attempt to settle any complaint made by way of conciliation, arbitration, adjudication, or such procedure* as *he or she thinks appropriate and acceptable to the parties to the complaint with the involvement of any Labour Union present at the place of work of the complainant, and ... "*

This Court in *Sure Telecom v Brain Azemchap,* LDA No. 008/2015, resolved the ambiguity in this section by stating that it was not the intention of the legislators that, the labour officer should apply all the methods, at the same time, in respect of the same proceedings, because this would be a travesty of Justice. The court decided that, in the interest of justice, when a Labour officer chooses to proceed with one of the 3 methods provided under Section 12(1) (a), he or she must endeavor to settle the matter with the method chosen and refer the matter to another arbiter, if it is not resolved and in that case, the new arbiter will be at liberty to choose another method.

[7] The Record of Appeal in the instant case indicates that on 13/04/2023, the Labour officer at Kayunga District Local Government, Ms. Eva Nandawula, undertook to resolve the dispute before her by Mediation. This is because the subject heading on her report indicates that she held a mediation meeting between the parties. Save for the Mediation report, there is nothing to indicate that any other proceedings took place. There was no proof of the matter being arbitrated or adjudicated by any other person. In addition, there is no record of any pleadings, pre-trial documents, or witness statements on the record, or that any hearing took place.

Although in her mediation award, the Labour Officer rendered a decision based on Section 9 of the Management staff terms and conditions of service, these terms and conditions of service were not placed on the record of proceedings before her. This Court in *Yalfa Logistics v Mohamed Jillur Rohman* LDA No. 022 of 2020, stated that *"....the rationale for Conciliation is to build consensus between the parties in a dispute. Conciliation, involves a neutral third person who plays the role of helping the disputing parties reach a mutually agreeable solution to the dispute, as opposed to adjudication or arbitration, which are fact-finding hearings, in which the disputing parties must take oath before testifying about the issues in dispute and an adjudicator/judge must make determination or a declaration or an order.....".*

[8] The conciliator enables the parties to build consensus, while the adjudicator or arbitrator renders a decision after evaluating the pleadings and the evidence placed before him or her before and during the hearing. It is very clear to us that Ms. Eva Nandawula, the Labour Officer, intended to resolve the matter through conciliation, but she went further and issued an arbitral award contrary to procedure. The justice of the case required that after she filed to resolve it by conciliation, she referred the matter to another Labour officer for arbitration or

adjudication, instead of rendering a decision.

By doing this, the Labour officer contravened the principles governing conciliation. Having chosen to resolve the matter through mediation meetings, she was no longer a neutral person who could objectively render such a decision. We reiterate, that this Court in **Sure Telecom vs Brain Azemchap, Labour Appeal No. 008/2015,** laid emphasis on the principle that; *"...the application ofboth mediation and adjudication/arbitration at the same time in respect of the same Complaint, by a Labour Officer, is a travesty ofjustice..."*

[9] In the circumstances, it is our finding that the labour officer erred when she chose to resolve the dispute through conciliation, and then she rendered an arbitral decision. Therefore, the decision of the labour officer Eva Nandawula is overturned and set aside in its entirety in accordance with Section 93(3). The matter is referred to the Commissioner Labour for retrial. The Appeal succeeds. No order as to costs is made.

Signed in Chambers at Jinja this **25th** day of **September 2024.**


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

### **The Panelists Agree:**

- 1. Hon. Harriet Mugambwa, - 2. Hon. Frankie Xavier Mubuuke & - 3. Hon. Ebyau Fidel.

**25th September 2024 12:00 pm**