[2025] UGIC 43


# THE REPUBLIC OF UGANDA IN THE INDUSTRIAL COURT OF UGANDA AT KAMPALA **LABOUR DISPUTE CLAIM No. 202 OF 2014**

(Arising from HCT-CS 133/2014)

### KAMUGISHA ANNETTE MAGAIGA (ADMINISTRATOR OF THE ESTATE OF THE LATE KAMUGISHA DENNIS) ::::::::::::::::::::: **CLAIMANT**

**ATTORNEY GENERAL RESPONDENT**

# Before:

The Hon. Head Judge, Linda Lillian Tumusiime Mugisha.

# Panelists:

- 1. Hon. Charles Wacha Angulo, - 2. Hon. Rose Gidongo & - 3. Hon. Beatrice Aciro Okeny.

# **Representation:**

- 1. Mr. Faisal Sekitto of M/s. Namanya, Kafureeka & Co. Advocates for the Claimant. - 2. Mr. Ojiambo Bichachi of the Attorney General's Chambers for the Respondent.


### **AWARD**

### **Introduction**

- [1] On 5/05/2014, the Late Claimant filed a plaint in the High Court, Civil Division, and later filed a Memorandum of Claim to this court on 15/12/2014, alleging an unfair and unlawful breach of his employment contract by the External Security Organization of the Government of Uganda. The Claimant sued the Attorney General who is the legal representative of the Respondent, and sought the following remedies: gratuity, exgratia payment, transportation for the Claimant and his family back to Kanungu, leave allowance, unpaid salary under the Single Spine Policy, salary in lieu of leave for four years, refund for the one-way air ticket from Cairo to Entebbe, balance outstanding on transhipment costs for personal effects, demurrage incurred from 2nd May 2013 to 28th February 2014, recurring demurrage from 1st March 2014, general damages, punitive damages, interest, and costs. ' - [2] In a Memorandum in Reply filed with the Court on 30th August 2017, the Respondent denied the facts in the Claim and stated that the Claimant had retired in 2013 upon reaching the mandatory retirement age. The Respondent further claimed that gratuity, ex gratia, and all other entitlements had been duly paid to the Claimant. Therefore, he had no outstanding claim.

### **Facts of the case**

[3] The late Dennis Kamugisha was employed by the External Security Organization (ESO) of the Government of Uganda from 1986 until his retirement on 20th November 2013, having attained the mandatory retirement age. Between April 2008 and March 2013, he was posted to the Uganda Embassy in Cairo, Egypt, as First Secretary. In January 2013, he was formally notified that his tour of duty in Cairo would end by 31/03/2013 and was recalled to Uganda. He returned to Uganda in April 2013 and subsequently retired.in November 2013.

[4] According to the evidence on the record he Claimed that several benefits and entitlements under the Constitution of Uganda, the Security Organizations Act (Cap 305), the Security Organizations (Terms and Conditions of Service) Regulations, 2000, and the Public Service Standing Orders were not paid to him when he returned to Uganda and when he retired, including gratuity (Ugx. 42,768,000), ex-gratia (Ugx. 32,076,000), leave allowances, repatriation and transport expenses, unpaid salary under the Single Spine policy (Ugx. 102,960,000), and compensation for lost personal and property due to delayed shipment (USD 9,500).

The Respondent, did not dispute some of these claims and by partial consent of the parties it paid him the following:

- a) **Ugx.1,375,000/=** as refund for the cost of an air ticket from Cairo to Entebbe. - b) USD5,400(approximately UGX 19,440,000/=) as the outstanding balance for transhipment of personal property and effects. - c) **Ugx.**32,**076,000/=** as an Ex-Gratia payment under Regulation 32(2) of the Security Organisation - d) Organizations (Terms and Conditions of Service) Regulations. - e) **Ugx. 540,000/=** as transportation for the Claimant and his family back to Kanungu District.

Totalling to **Ugx. 53,431,000/-** as partial settlement. The said amounts were to be paid to the claimant on 22/06/2022. However, a number of claims remained unresolved, hence this suit.

[5] The Claimant passed away before the hearing of the outstanding issues commenced. On 04/01/2020, his widow, Kamugisha Annettee Magaiga, the Administrator of his estate, applied to court to be granted leave to substitute her husband for purposes of continuing the pursuit of the claimant's unpaid statutory claims, which court granted. When the matter was called for scheduling, the parties were directed to file a joint scheduling memorandum (JSM), which they filed in court on 21/12/2021 and following were framed as issues for resolution.

### **Issues:**

- 1. Whether there was a breach of the Contract of employment by the Respondent? - **2.** Whether the Claimant is entitled to the payments sought? - **3.** What are the Remedies available to the parties?

Since the dispute was in respect of the Claimant's statutory claims, based on documentary evidence, both counsel were directed to file written submissions, which they did, and for which we thank them.

#### **Submissions**

#### **Issue 1: Whether there was a breach of the Contract of employment by the Respondent?**

[6] It was submitted for the Claimant that he was an officer of the External Security Organisation (ESO) and served the Government of Uganda for a continuous period of 27 years, culminating in his retirement on 20/11/2013. Upon retirement, he was supposed to be paid his terminal benefits as provided under the **Security Organisations (Terms and Conditions of Service) Regulations, 2000** and the

**Public Service Standing Orders** which instruments regulate officers in the public service but despite fulfilling his contractual obligations, including overseas deployment for 52 months as First Secretary in Cairo, the Respondent failed to pay several critical retirement entitlements, that included outstanding gratuity, leave allowance, salary in lieu of leave salary under the Single Spine Salary Structure, and reimbursement for property lost due to delayed shipment clearance.

The Respondent argued that the Claimant was paid all that was owed to him; therefore, there was no breach of contract.

[7] Although both parties relied on sections 101-103 of the evidence Act, Section 19 of the Labour Disputes (Arbitration and settlement) Act is to the effect that that the Evidence Act does not bind the Industrial Court, or rules of evidence, therefore the primary source of legal and evidential burden in employment disputes is the Labour Disputes (Arbitration and settlement) Act, the Employment Act and the contract of employment, which spells out the rights and obligations of the parties. However, the court is not precluded from applying the Evidence Act where there is a lacuna in Labour law.

We believe this was the basis for the reasoning in *J. K. Patel* v *Spear Motors Ltd, SCCA* No. 4 of 1991, where the Supreme Court's holding is to the effect that where the Claimant adduces prima facie evidence that remains unchallenged or is insufficiently rebutted, the burden shifts to the Respondent. Section 58 of the Employment Act places the burden on the employer to provide the written particulars of their employees, including the terms and conditions of the employment.

[8] Although Mr. Bichachi, Counsel for the Respondent, argued that the silence of the Respondent did not prove the Claimant's case, it is clear that where the Claimant/employee has adduced prima facie evidence in respect of a labour dispute,

Page 6 of 21

the burden shifts to the Respondent/ employer to prove the contrary. In any case, as already discussed, the rights and obligations or written particulars of employment are drawn by the Employer, given that the employer has managerial prerogative over his or her business. The employer is therefore expected to keep custody of everything connected to the employment relationship.

[9] Although we are inclined to agree with Mr. Bichachi that the court's role is to interrogate the authenticity or veracity of the Claimant's claim, and the evidence to rely on during this interrogation was the written particulars of employment. The record indicates that whereas the claimant was appointed to work with ESO in 1986, following the enactment of the Security Organisation (terms and conditions of service) Regulations, 2000, which, according to Regulation 2 thereunder, applied retrospectively, the Claimant's particulars of employment included the said regulations.

Regulation 16, entitled him to a salary, allowances privileges and immunities and other benefits commensurate to his rank in ESO, Regulation 21 entitled him to all privileges, exemptions, immunities and other benefits that accrue to an officer in the Uganda Government Foreign service, Regulation 28(2) provides for leave allowance of 10% of his salary where annual leave was taken and where leave is not approved, he would be entitled to the leave allowance. Therefore, he would be entitled to 10% whether leave was taken or not, Regulation 32(2) entitled him receive ex- gratia payment equivalent to 5% of his gross earnings for the period served and Regulation 37 entitles him to payment of gratuity at 30% of his gross salary earnings for every completed year served. These were fundamental provisions of his contract of employment that had to be complied with by the Respondent.

[10] It is not in dispute that the Respondent did not pay some of the Claimant's terminal benefits within the time prescribed under the Uganda Public Service Standing Orders Section L - d (5), not later than 3 months after retirement. The Respondent admitted that it did not pay some of the benefits which it paid to the Claimant in 2022, 9 years after the Claimant retired in 2013, after the parties entered a partial consent agreement.

In employment law, a breach occurs where the employer fails to fulfil express and or implied terms of the employment contract, including the duty of mutual trust and confidence. The Respondent, by the consent agreement between the parties, admitted that it had breached its obligation to fully pay the claimant his statutory benefits promptly. Issue ¹ is therefore answered in the affirmative.

#### **Issue 2: Whether the Claimant is entitled to the payments sought? Gratuity**

[11] Mr. Kafeero submitted for the claimant submitted on issues ¹ and 2 concurrently and stated that the Claimant having been employed by ESO from 1986 until his statutory retirement age on 20/11/2013, under the Security Organizations Act (Cap 305), the Security Organizations (Terms and Conditions of Service) Regulations, 2000, he was entitled to benefits accruing thereunder. He contended that whereas the regulations came into force in the year 2000, according to Regulation 2, they applied retrospectively therefore, the claimant's employment was retrospectively covered by the said regulations. He argued that in accordance with section 101-103, *Jk Patel v Spear Motors Ltd* CA No. 4 of 1991 which relied on *Constantine Steamship Line v Imperial Smelting Corp* [1941] 2 ALLER R 165 which are to the effect that the burden of proof lies with he who alleges, the claimant proved that he was employed by ESO and he was entitled to payment of salary, allowances, privileges, repatriation expenses and terminal benefits. The Respondent, however, neglected to pay the said entitlements between April 2008 and March 2013.

[12] According to Counsel, Regulation 37(1) of the Security Organisations (terms and conditions of service) Regulations 2000, which provides for the payment of 30% of gross salary for every 3 years of service as gratuity, entitled the Claimant, who had served for 27 years, to gratuity. He argued that based on this computation, what the Respondent computed and paid to the claimant in the sum of Ugx. 142,560,000/- was less Ugx.42,768,000/=. According to Counsel, based on the Claimant's salary of Ugx. 1,980,000/-, the total salary pre- 2000 regulations was 1,980,000 x 12 x 14 = 332,640,000/- x 30% = 99,792,000/- as gratuity and 1,980,000/- x 12 x 12= 285,120,000/- x 30% = 85,536,000/-. The total gratuity was therefore Ugx. 99,792,000/- + 85,536,000/- = 185,328,000/-. He was paid **Ugx. 142,560,000/-,** therefore, the outstanding is **Ugx. 42,768,000/-.**

The Respondent in reply contended that Regulation 2000 was amended and replaced by SI No. 40 of 2018, therefore, the claimant cannot claim under a law that was revoked.

## **Decision of Court**

[13] It is not in dispute that the Claimant was appointed in May 1986; he was promoted to the position of Director on 1/09/1991, effective 25/10/1990. At the time of his appointment, his employment was subject to the Security organisations Statute No. 10 of 1987 and administrative instructions thereunder. However, in 2000, the Security Organisations (Terms and Conditions of service) 2000 were enacted and came in force on 1/07/2000. Regulation 2 of these regulations provided that an employee or officer serving in a security organisation immediately before the commencement of the regulation shall be deemed to be duly appointed under them.

In the circumstances from July 2000, the Claimant's employment in ESO was subject to "The Security Organisations (Terms and Conditions of Service) Regulations 2000, until his retirement in 2013. it is therefore not the correct position for the Respondent to assert that these regulations, having been revoked by the enactment of the amendment of the regulations in 2018, the claimant could not claim under them. This is because at the time of his employment, it was the 2000 regulations that were applicable to the Claimant, and by the time of his retirement, the Claimant had already earned his benefits in accordance with the 2000 Regulations.

[14] We are fortified by *Mujibhai Madvani & Co Ltd & Anor v Francis Mugarura & 35 Others,* [2020] UGSC21, cited by His Lordship Wabwire Anthony in *Alaba Helen vs Bank of Uganda* LDR No. 053 of 2017, on the accrual of earnings based on terms and conditions pertaining during one's employment. In that case, the Supreme Court observed that when a company has a document outlining its terms and conditions of service, which specify payment plans and benefit options, an employee should be allowed to rely on those terms and conditions. If that were not the case, then an employer could write enticing retirement packages into their bylaws to attract employees, but then dishonour the terms when the individual seeks to retire. In light of this principle, by invoking the 2018, regulations as the basis for computing the Claimant's benefits, the Respondent is in essence dishonouring Security Organisation (Terms and Conditions of Service) regulations, 2000, that applied to the Claimant's employment at the time he retired in 2013.

As Justice Wabwire Anthony stated in Alaba(supra), the Industrial Court as a court of equity, must enforce Labour rights and provide remedies for their violation. According to Osborn's law dictionary, a right is said to accrue when it vests in a person, especially when it does so gradually or without his active intervention. It is clear that by the time the Claimant was deployed to work as First Secretary, at the Uganda Embassy in

Cairo on 14/05/2008, his terms and conditions of service were governed by "The Security Organisations (Terms and Conditions of Service) Regulations 2000".

[15] In the circumstances, the computation of all his benefits, including gratuity, would be computed in accordance with the 2000 Regulations and Regulation 37(2) in particular. Regulation 37(1) provides that, "An Officer shall, after every 3 years of service, be paid a gratuity of 30 percent of his or her gross salary earnings for every completed year.

(2) for avoidance of doubt, gratuity accruing before the commencement of these regulations shall be calculated at 30 percent of salary earnings for the period served.¹¹ (emphasis ours).

After carefully perusing the Respondent's trial bundle filed in this court on 09/07/2018, we established at page 6, marked annexure "G", that his ex gratia was calculated at Ugx.1,942,900/ per month in accordance with regulation 32(5) of the 2000 Regulations at 5% of the officer's gross earnings for the period served as opposed to the Ugx. 331,200/= that he initially earned in 1991. This, in our considered view, was sufficient evidence to show that the in fact, the Respondent was cognisant of the 2000 regulations. We further established that the partial gratuity paid to him was computed based on regulation 37(2) (supra) as evidenced at pages 7 and 8 of the same trial bundle. In the circumstances, the correct formula is the formula provided for under regulation 37(2) of the 2000 regulations. It was the Claimant's submission that the respondent had only paid him a total of **Ugx.142,560,000/-,** instead of Ugx. **Ugx.185,328,000/-.**

[16] It was not in dispute that by the time of his retirement in 2013, the claimant was earning a gross salary of Ugx. 1,980,000/- per month. Therefore, he would be entitled to 30% of the annual gross salary for every year served. After carefully reviewing the computation made by Mr. Kafeero, Counsel for the Claimant above, in light of regulation 37(2), we are inclined to agree with it in its entirety. Based on this computation, the respondent having not denied that it had only paid him Ugx.

142,560,000/-, it is the correct position that the Claimant was paid less Ugx. 42,768,000/- as his gratuity. The respondent is therefore ordered to pay the outstanding balance of his gratuity amounting to **Ugx. 42,768,000/-.**

### **Ex-gratia**

[17] With respect to ex-gratia payment, Counsel relied on Regulation 32(5), which provides for the payment of 5% of an officer's gross earnings for the period served as ex-gratia, upon retirement. The amount computed by the Claimant was Ugx. 32,076,000/-. We established that this amount was computed as part of the partial consent executed by the parties. In the circumstances, this claim is untenable; it is denied. On payment to retiring officers. Based on his total gross earnings, the Claimant is entitled to **Ugx. 32,076,000/=,** which the Respondent has not paid and has not disputed. We have already established that the said ex gratia was computed in accordance with regulation 32(5) and paid to the claimant as part of the partial consent agreement executed by the parties. In the circumstances, this claim is untenable and it is denied.

## **Repatriation**

[18] The Claimant further stated that upon retirement, he was entitled to transport facilitation to his home district of Kanungu as provided under Regulations 27 and 32. He testified that this facilitation, valued at Ugx. 540,000 was never availed to him, and the Respondent offered no justification for its non-payment. This claim was paid as part of the partial payment; it is therefore denied.

#### **Annual Leave**


[19] Counsel for the Claimant asserted that it was the Claimant's evidence that for 6 years preceding his retirement, he had not been granted annual leave nor paid salary in lieu thereof, save for 2 years, therefore he was entitled to payment of 10% of his annual salary as leave allowance as provided under Regulation 28(2). Therefore, the Respondent owed him salary in lieu of leave for the remaining 4 years amounts to Ugx. 7,920,000, which the Respondent has not contested.

In reply, Mr. Backache Ojambo, Counsel for the Respondent, contended that the claimant had not adduced any evidence to prove that he applied for leave and it was not granted to warrant this claim, and in the absence of such evidence, this claim should be denied.

The claimant in rejoinder submitted that notwithstanding the general principle that imposes on the employee an obligation under the evidence Act and the Employment Act to prove that he applied for the said leave, the fact that the Respondent paid for the 2 years amounted to an admission that the claimant requested for the said allowance and in the absence of evidence to the contrary court should find in favour of the claimant. In any case, he spent the entire 6 months at the station in Cairo without ever returning home, and this has not been refuted by the Respondent.

## **Decision of Court.**

[20] We have had an opportunity to scrutinise regulation 28(2) which provides that "An Officer or employee -proceeding on annual leave shall be paid 10 percent of his or her annual salary as leave allowance and where an officer or employees leave is not approved, he or she is entitled to the leave allowance.''

This regulation implies that an officer would be entitled to the payment of 10% of his or her annual salary as a leave allowance, whether they take annual leave or not. In

fact, it clearly provides that where the leave is not approved, the officer would still be entitled to the leave allowance. Therefore, the argument that the claimant had not adduced evidence to indicate that he had applied and the leave was not approved cannot hold. The wording of regulation 28(2) shifts the burden to prove otherwise onto the Respondent, who must show that the claimant either took annual leave and was paid or that his application for annual leave was denied, but he was paid in accordance with the regulation. This was not done. In light of Regulation 28(2), section 53, which makes it a requirement for the Claimant to prove that he or she applied for leave and it was denied, before he or she can claim for payment in lieu of untaken leave. The Regulation clearly stipulates that an Officer, such as the claimant, was entitled to leave allowance of 10% of his or her annual salary, whether the annual leave was taken or it was denied.

In the absence of any evidence that the Respondent paid him leave allowance for the 4 years claimed, we are inclined to agree that the Claimant was entitled to be paid. In the circumstances, the Respondent is ordered to pay the Claimant the unpaid annual leave allowance at 10% of his annual salary, amounting to Ugx. 2,376,000/ per year, totalling **Ugx. 9,504,000/-.**

# **Single Spine Structure and Foreign Service Entitlements**

[21] It was submitted for the Claimant that he adduced evidence to show that while on foreign service in Cairo, he was entitled to remuneration under the "Single Spine Salary Structure," as per Regulation 21 of the Regulations and a communication from the Ministry of Foreign Affairs dated 4th January 2013. The Ministry directed that all Foreign Service staff, including those seconded from ESO, be paid accordingly. The Claimant testified that despite this directive, he was never paid the enhanced salary

during his 52-month deployment. His monthly entitlement under the policy was UGX 1,980,000, leading to a total claim of UGX 102,960,000. The Respondent has not produced any payment evidence to rebut this claim.

Additionally, the Claimant stated that upon completion of his foreign assignment, he personally paid for his return air ticket from Cairo to Entebbe at a cost of UGX 1,375,000, which has not been refunded to date. He presented the receipt as evidence (CE.7). Regulation 27(4) provides for such transport costs to be met by the Respondent, which has not complied.

[22] In reply, Mr. Ojambo, Counsel for the Respondent, argued that by virtue of his appointment as security officer, the Claimant was employed under the Security Organisations Statute No. 10 of 1987, which entitled him to an allowance and not a salary once posted abroad. Therefore, between 2008-2013, when he was first secretary in Cairo, he was entitled to payment of allowance and not salary. He contended that "The security Organisations (Terms and Conditions of Service) regulations 2000, came into effect on 17/11/2002, and it entitled all employees or officers of the security organisation to salaries and entitlements that accrue to Ugandan foreign service officers. He cited regulation 16(2), which provided that every officer or employee shall be paid a consolidated salary package in accordance with the approved salary structure for the security organisation, based on the experience and qualifications of the officer or employee and Regulation 21 which provided that an officer deployed in a foreign mission is entitled to all privileges, exemptions, immunities and other benefits that accrue to an officer in the Uganda Government Foreign Service. These were under the "single spine salary structure". According to Mr. Ojambo, the claimant, having retired in 2013, the single spine structure had not yet been implemented, given that it was only implemented under the vote of FY 2015/2016; therefore, the claimant is estopped from claiming the same.

In rejoinder the Claimant relied on the correspondences from the Ministry of foreign affairs which was admitted on the record as "CE5" to submit that the single spine salary structure commenced in FY 2008/2009, therefore the Claimant was entitled to the said salary from April 2008-March 2013, as envisaged under Regulation 21 of the 2000 Regulations and the Respondent neglected to pay the said sum **Ugx.102,960,000/-.**

### Decision of Court

[23] Regulation 21 of "The security Organisations (terms and conditions of Service) regulations 2000, is to the effect, that all employees and officers in any Security Organisation deployed in a foreign mission were entitled to all privileges, immunities and other benefits that accrue to an officer in the Uganda Government Foreign service and this was not disputed by the Respondent. We had an opportunity to peruse the letter issued by the Permanent Secretary of Foreign Affairs to all heads of Missions dated 2/06/2008, admitted on the record as "CE5", the letter stated that the single spine salary structure for all officers in our Missions abroad would commence with the financial year 2008/2009. The service allowances were also reviewed on 16/06/2011 and provided for transhipment costs of USD 13,000.

Even if we were to consider that ESO only implemented the single spine salary in 2015/2016, the same having come into effect in June 2008, the Claimant would be entitled to the payment of his salary under the policy from 2008/2009 and would therefore be entitled to payment of his arrears. As already discussed, the Employment Act under section 57 places the burden of proof on the employer to provide the written


#### Page 16 of 21

particulars of their employees, including the terms and conditions regarding the employment. The Respondent did not place before us any evidence to indicate that the claimant was not eligible for payment of his salary arrears, under the single spine salary structure when the same was implemented in FY 2015/ 2016 and only denies that the Claimant was not entitled merely because it was implemented by ESO late in 2015.

[24] It is glaringly clear that the Claimant was not paid his salary under the single spine structure because, as stated by Mr. Bichachi, the policy was only operationalised by ESO in 2015, 2 years after the Claimant retired. Given that the policy took effect in June 2008, it is not sufficient for the Respondent to argue that, merely because it was only implemented in 2015, the Claimant had no claim. The right to this salary vested in the Claimant on the day the Ministry of Foreign Affairs pronounced its commencement in June 2008, in respect of all Uganda Government Foreign Service. This is because Regulation 21 of the 2000 regulations provides that:

"An officer deployed in a foreign mission is entitled to all privileges, exemptions, immunities and other befits that accrue to an officer in the Uganda Government Foreign Service."

Therefore, in light of this regulation, the Claimant, as first secretary at Uganda's Embassy in Cairo, was entitled to payment of his salary under the single spine salary structure with effect from 1/07/2008. Having not adduced any evidence that the Claimant was paid his salary under the single spine salary structure from June 2008 until March 2013, headquarters, and having not disputed the computation of the unpaid salary, the Respondent, by its conduct, does not deny that the Claimant was entitled to this salary. In the circumstances, the Respondent is ordered to pay **Ugx. 102,960,000/=** as salary unpaid under the single spine policy from June 2008 to March 2013.

# **Transhipment and Special Damages for Loss of Property**

[25] The Claimant testified that he was entitled to a transhipment benefit of USD 13,000 upon return from Cairo, but only received USD 7,600, leaving a balance of USD 5,400. The Respondent's failure to pay this amount caused the goods to be withheld by Evergreen Logistics for several months due to unpaid freight charges. As a result, the Claimant suffered the loss of all his household goods, which were ultimately auctioned off to recover storage costs. The Claimant valued the lost property at USD 95,000 and supported his claim with evidence of shipping documents, storage communication, and auction notices (CE.9).

He contended that but for the Respondent's breach of its statutory obligation to pay the full transhipment cost, he would not have incurred this loss. He relied on the principle in *Hadley* v *Baxendale* (1854) 9 Exch. 341 where damages flow naturally from a breach and were within the contemplation of the parties, they are recoverable. He contended that this loss was foreseeable and arose directly from the Respondent's omission, because despite making formal claims for all these entitlements, the Respondent failed or refused to pay, thereby breaching the terms of his employment contract.

[26] In reply, it was submitted for the Respondent that the Claimant failed to notify Administration about the cost of transportation and personal effects, despite having been informed to do so on 3/01/2013 when he was instructed to prepare for return. While the Claimant allegedly handed over his items to Evergreen Logistics Corp Egypt SAE on 18/04/ 2013, there was no evidence that this information was shared with the Respondent. Furthermore, the Claimant failed to provide a packing list or itemized valuation of the goods. Mr. Bichachi argued that, given the lack of corroborative

evidence and failure to prove special damages, the Respondent cannot be held liable for the demurrage losses.

# Decision of court.

[27] It is clear from the evidence on the record (see "CE7") that the Respondent advised the Claimant to begin preparing to return to headquarters in Uganda in January 2013. The same letter requested him to state the cost for himself and his personal effects to enable the Respondent to facilitate his return. Save for an acknowledgement receipt from a Company known as "Evergreen Logistics Corp Egypt", dated 18/04/2013, the Claimant did not adduce any other evidence to indicate that he had followed the Respondent's instructions and communicated the cost of transporting himself and his personal effects. In any case, the receipt from Evergreen only indicates receipt of undescribed/ unparticularised property but is silent on the cost of its transportation.

We found it peculiar that when the Claimant received only USD 7600 out of his entitlement of USD 13,000, he kept silent about the unpaid balance, until he filed his complaint before the Courts of law. In addition, the Claimant has not demonstrated how the transhipment or demurrage accumulated in the absence of the initial quotation/invoice from Evergreen Logistics regarding the same. In the absence of the initial quotation/invoice on which he application of the 1.5% demurrage was purportedly computed to arrive at USD 95,000. Even if the Respondent breached its obligation to pay the outstanding USD 5400, which he was entitled to for transportation, the Claimant has not demonstrated that he incurred the costs of demurrage of USD 95,000. We therefore find this claim baseless. It is denied.

[28] In Conclusion, the Respondent failed to discharge its obligations under the binding terms and conditions of employment as provided in the Regulations. The evidence tendered, including the witness statement, trial exhibits, and partial consent, collectively establish that: The Claimant was entitled to benefits that were neither paid timely nor in full; The Respondent's failure to pay resulted in substantial losses, including the destruction of personal property; The amendments of 2018 cannot be applied retrospectively to deny accrued entitlements; The partial payments made by the Respondent constitute admissions of liability; No rebuttal evidence has been provided against the detailed calculations and testimony of the Claimant. Therefore, prayed that this Court finds in his favor and awards the reliefs sought in the claim, inclusive of special damages, terminal benefits, and general damages for breach of contract.

### Issue 3: Remedies Available

[29] The Respondent, having been ordered to pay the Claimant all his outstanding statutory claims, and in the spirit of restitutio in integrum, he was returned to the position he was in at the time of his retirement in 2013. However, given that he ought to have been paid these entitlements not later than 3 months after he retired in November 2013, and given that his salary under the single spine structure was withheld from him for 2008 to 2013, he ought to be compensated for financial losses caused by prevailing economic circumstances and change in the value of money during from the November 2013 when he retired. We were of the considered opinion that compensation in form of interest on all the pecuniary awards at a commercial rate would suffice. In the circumstances, the Claimant is awarded an interest rate of 19% per annum on all the pecuniary awards already made above, from the date of his retirement in November 2013, until payment in full.


Page 20 of 21

### a) General Damages

Although it was submitted that the Claimant suffered **emotional distress, financial hardship,** and prolonged uncertainty for over a decade which entitled him to ana ward of general damages, given that he did not adduce evidence to prove this, even on light of *Attorney General v Kobia & Others* [2005] EA 55, where the Court awarded damages for unjustified delay and breach of public duty, we have no basis to make an award for general damages given that the claimant did not adduce any evidence to prove his claims. In any case, this matter proceeded on the basis of the resolution of statutory claims and no other issues. We believe that the award of interest on all the pecuniary awards above, at a commercial rate of 19% per annum from 2013, until payment in full, is sufficient.

# b) Costs

This Court has maintained the position that costs in Labour disputes are granted in exceptional circumstances. This is because of the unequal contract between the employer and the employee. Whereas the employer is the holder of capital and therefore he or she can afford to incur the costs of litigation, the employee who has lost the means of earning is not in the position to pay costs. Therefore, to award costs against an employee whose rights have been violated by the Respondent/employer would be condemning him or her to destitution. In order to ensure equality in justice, however, this principle applies to the employer as well.

Although the Claimant would be entitled to costs for the breach occasioned by the Respondent, he did not come with entirely clean hands. This is because he did not adduce evidence to show that he had taken the steps required of him following receipt of the notification to prepare to exit Cairo, as required under Section L-d of the Public Service Standing Orders. In the circumstances, given that he had to wait

for a period of over 9 years to realise his statutory entitlements, the Respondent shall pay half the taxed costs of the suit.

# **Final Orders**

- 1. It is declared that the Respondent breached the Claimant's contract when it failed to pay his statutory claims within the 3 months as provided for under section L-d of the Public Service Standing Orders and the 2000 Regulation. - 2. The Respondent is ordered to pay the Claimant in the following terms: - a. Ugx. 42,768,000/- as outstanding balance on gratuity. - b. Ugx. 9,504,000/-as paid annual leave allowance at 10% of his annual salary. - **c.** Ugx. 102,960,000/- outstanding unpaid salary under the single spine salary structure from July 2008 to March 2013. - d. Interest at 19% per annum on a-c above from November 2013 until payment in full. - e. Half the taxed costs for the Claimant.

Signed in Chambers at Kampala this 13th day of **June** 2025.


Hon. Justice Linda Lillian Tumusiime Mugisha,

**Head Judge**

# **The Panelists Agree:**

Hon. Charles Wacha Angulo,

Hon. Beatrice Aciro Okeny &

Hon. Rose Gidongo.

iTDc