[2025] UGIC 44


# THE REPUBLIC OF UGANDA IN THE INDUSTRIAL COURT OF UGANDA AT LIRA LABOUR DISPUTE REFERENCE NO. 03 OF 2021

*(Arising from Labour Dispute Complaint No. /LDLG/11/009 of2020)*

# OBONG NAAMAN WALTER: CLAIMANT

# VERSUS

VINCE TOURS AND TRAVEL LTD RESPONDENT

Before: The Hon. Mr. Justice Anthony Wabwire Musana

The Panelists: Hon. Adrine Namara, Hon. Emmanuel Bigirimana & Hon. Can Amos Lapenga.

*Representation:*

- *1. Ms. Bridge Kusemererwa of M/S Platform for LabourAction for the Claimant.* - *2. Mr. Daniel Odongo for the Respondent.*

#### *Case summary*

*Employment law- Existence of employment relationship- Purposive and holistic approach to establishing employment relationship-*

### *Employment law- Burden of proof of termination-*

*The Claimant sought unpaid wages and allowances, alleging unfair termination after falling ill from his role as a Manager. The Respondent countered that the Claimant was merely a freelance driver paid per assignment, denying a formal employment relationship or termination, instead claiming the Claimant abandoned a vehicle after receiving money from a tourist. The court, in its thorough examination ofevidence from both sides, including witness testimonies and payment records, to determine the nature ofthe employment relationship and whethera termination had occurred, declared that the Claimant was a casual employee and dismissed the claims for unpaid wages and damages, finding no evidence of termination.*

#### AWARD

#### *Introduction*

[1] The Claimant brought this claim for unpaid accumulated salary arrears of UGX 2,880,000/= (shillings two million eight hundred eighty thousand) and other allowances arising from his employment as a Manager from 10th March 2018 until July 2021, when he was unfairly terminated. It was his case that he was terminated after he had fallen ill. His complaint before the Labour Officer at Lira was not resolved and was referred to this Court.

- [2] The Respondent opposed the claim. It was contended that the Claimant was never in the ' ;; Respondent'^s employment as ^a manager. He was ^a 'freelance driver\* who was paid upon *//* completion of any assignment. It was contended that upon receipt of certain monies from a tourist, the Claimant abandoned the van assigned to him and disappeared. He was therefore never terminated. - [3] At a scheduling conference held on the 23rd of February 2023, the following issues were framed for this Court's determination; - *Whether there was an employment relationship between the Claimant and Respondent? (i)* - *Whether the Claimant was unfairly and unlawfully terminated? (")* - *What remedies are available to the parties? (Hi)*

#### *The Evidence*

#### *The Claimant's evidence*

- [4] In his witness statement, the Claimant testified that he was employed by the Respondent as Manager on the 10th of March 2018 at an agreed salary of UGX 180,000/= (shillings one hundred eighty thousand) per month. He said his roles and duties included maintaining records and overseeing general business management. In July 2021, he fell ill and informed the Respondent's Director. When he returned to work two weeks later, he found that Odil Vincent had been given his Responsibilities. He claimed an unpaid salary of UGX 2,880,000/= (shillings two million eight hundred eighty thousand), UGX 180,000/= (shillings one hundred eighty thousand) being one month's payment in lieu of notice, allowances for Plan Uganda of UGX 380,000/= (shillings three hundred eighty thousand), RTI GAPP of UGX 320,000/= (shillings three hundred twenty thousand), and JSI of UGX 520,000/= (shillings five hundred twenty thousand). He testified that he had been mentally distressed and psychologically tortured. - [5] In cross-examination, he told us that he did not have an appointment letter as a Manager. When pressed by Mr. Odongo on the allowances for Plan Uganda, RTI GAPP, and JSI, he stated that he had worked at these organisations for about 2 months, which was not during his employment with the Respondent. He was shown his exit letter dated 23rd November 2018. He stated that he requested this letter because the Head of Human Resources at the Respondent, George Luyinda, was leaving to take another job in Kampala. He also conceded that 291 Suites was a different company and his work there was not related to his role as a Manager at the Respondent. - [6] In re-examination, he said he started working for the Respondent on 10th March 2018. He also conceded that the period 10th March 2018 to September 2019 was not two years. He said he needed the exit letter, which was given to someone who was leaving, to help him look for money. He also told us that since he was working for the Respondent, its Director asked Mr. Luyinda to supervise him.

LDR03/2021 ObongN. WVVinceTours andTr TnverLMAuurd. Gulujlp jflSny Wabwire MusnnaJ.13.06.2025

### *The Respondent's evidence*

- **[7]** George Konyen (RW1) testified that he had been the Respondent's Operations Manager from 2017 but had previously managed the sister company, Suites 291 Hotel, for nearly seven years. He said the Claimant was engaged on commission as a freelance driver to drive the Respondent's Tourist Vans on an on-call basis. The Respondent did not engage the Claimant as a manager because he lacked the necessary qualifications. He told us that the Claimant was paid per trip upon completion of a day's journey. He told us that the Claimant could not have been unfairly terminated because he was never employed in the first place. He stated that in early 2020, the Claimant received UGX 2,700,000/= (shillings two million seven hundred thousand) from some tourists, abandoned the Respondent's van, and disappeared with the money. From that date, he has not been given any further work. - **[8]** Under cross-examination, he stated that he began working for the Respondent in August 2018, concurrently with his duties at 291 Suites Hotel. He told us that the early 2020 incident involving the tourist occurred at Murchison Falls National Park, where the Claimant allegedly received UGX 2,700,000/= (shillings two million seven hundred thousand) from some tourists, abandoned the Respondent's van, and disappeared with the money. The Respondent did not file any criminal complaint related to this incident. - **[9]** In re-examination, he stated that the Respondent did not file a criminal complaint because the Claimant was related to the Respondent's Director, and he did not wish to strain family relations. He confirmed the payment of the drivers' daily wages. - **[10]** After RW1's testimony, the Respondent called Vincent Odil (RW2), who testified that he knew the Claimant and first met him in 2019 while the Claimant was working for the Respondent. He stated that the Claimant was working as a freelance driver and that he and the Claimant were not employees of the Respondent, but rather freelance drivers paid per trip. He also told us that he was still a freelance driver at the time he made his witness statement and that he had not been employed as a manager, nor did he replace him. He told us the RW1 was the Manager. In cross-examination, he stated that he was given an identity card because he did not receive a salary. He said on-call drivers earn a commission on the cost of vehicle hire. He also noted that the Claimant and he were employees of the Respondent. In re-examination, he clarified that he was a freelance driver, not an employee, and was only paid when he completed work. - **[11]** The Respondent's final witness, Innocent Ameny(RW3), filed a witness statement that mirrored RW2's. He testified that he met the Claimant in 2019 when he joined the Respondent as a freelance driver, which the Claimant was also doing at the time. He was given a driver's tag. He also stated that the Claimant and he were not employees of the Respondent, but rather freelance drivers paid per trip. He said that the Claimant had not been employed as Manager of the Respondent. He stated that he knew all the commission drivers and that the Claimant had ceased to be a commission driver in 2021. - **[12]** Under cross-examination, he stated that he knew the meaning of the term 'employee' and that when he was issued an identity card, he would work when he was called. He clarified that he was not an employee, and commission drivers would work only when they were called, paid, and would return only when there was work. He said his ID read 'driver' anomot 'drivepofi call,'

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and it did not have an expiry date. He stated that he was an employee of the Respondent, but did not understand how it worked because he was not there full-time. He said that he was paid daily, and it was not his responsibility to determine whether other employees had employment contracts. Additionally, he was not present when the Claimant was recruited. He stated that he was unaware of any agreement between the Claimant and the Respondent.

- $[13]$ In re-examination, he stated that the Respondent had employed him. - At the close of the Respondent's case, we directed the Respondent to produce its payment $[14]$ records and issued a schedule of submission. The record indicates that the Claimant adhered to the filing directions, whereas the Respondent did not.

#### Determination

Whether there was an employment relationship between the Claimant and Respondent?

- $[15]$ Ms. Kusemererwa directed our attention to Section 2 of the Employment Act Cap. 226 for the definition of an employee and the case of *Kyamukama v Makerere University Business School*¹ where a contract of service was qualified by (i) agreement by the servant to provide work or skill to the master in exchange for a wage or other remuneration, (ii) a servant agreeing to be subject to the control of the master and (iii) other provisions consistent with a contract of services. We were also referred to Stevenson, Jordan & Harrison Ltd v MacDonald & Evans², for an exposition of the integration test, Market Investigations Ltd v Minister for Social Security³ for a description of the business reality test and Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance⁴ for the three conditions of a contract of service. Counsel also relied on Lubowa & Anor vs Victoria Seeds⁵ for the distinction between an employee and an independent contractor. Finally, our attention was drawn to *Uber BV & Ors v* Aslam & Ors⁶ where drivers in a transportation service performed by drivers and offered to passengers through the Uber app, were found to be workers or employees of Uber. Because the Claimant was under the Respondent's control to a large extent, used the Respondent's tools, and was assigned duties including keeping and maintaining records. Counsel contended that he was the Respondent's employee and asked us to find so. - $[16]$ The Respondent did not offer any legal arguments either for or against the question.

Decision

$[17]$ Modern Industrial jurisprudence has expanded the test for determining whether a person is an employee, now taking a more holistic view of all the circumstances of a claim of employment. It is a much broader prism than envisaged under the definition of a contract of service in earlier cases. This has been informed by changes in the workplace influenced by the rapid advancement of information and communication technology, as well as the digitisation and

LDR 03/2021 Obong N. W V Vince Tours and Traver Ltd Award. Gulu

^&lt;sup>1</sup> [2020] UGIC 36

^&lt;sup>2</sup> [1952] 1 TLR 101

^&lt;sup>3</sup> [1969] 2 QB 173

^&lt;sup>4</sup> [1968] 2 QB 497

^&lt;sup>5</sup> LDR 185 of 2016 Industrial Court

^&lt;sup>6</sup> [2021] UKSC 5

digital transformation of business processes, and their impact on the traditional employer- ^| ^| employee relationship. These changes are also reflected in shifting business models that focus on efficiency and broader economic trends. As a result, the Courts now take a wider view, as we explained in *Kamukama v Summit Project Limited⁷* and *Kyobutunqi v NIC General Insurance Company Limited⁸.*

- [181 In these cases, what crystallises as the broader principle in establishing,an employment relationship is that courts should consider a multi-faceted or mixed approach. That approach is consistent with *Uber,* cited by Counsel for the Claimant. In that case, Uber owned the technology app under which the Respondents performed services, but there was no written Contract. In the sole judgment of the Supreme Court of England, Lord Leggat adopted a purposive approach to interpreting an employment contract. He considered the purpose of the relevant employment legislation to be to provide protection to vulnerable individuals who have little or no say over their pay and working conditions, as they are in a subordinate and dependent position in relation to a person or organisation that exercises control over their work. Lord Leggat's other concern was that employment tribunals or Courts must establish, as we did in *Ashaba* v *Mutoni Construction Uganda Limited\*,* the employment relationship from an investigation of the factual circumstances in which the work is performed, the question of whether work is performed by an individual and an employer (or worker in the extended sense) or an independent contractor is regarded as a question of fact. - [191 Therefore, the dicta of the above cases means that for an employment relationship, the Court may inquire into the following: - (>) Whether the employee has agreed to work for an employer. - (ii) There is remuneration for that work. - (iii) Whether the employee is under the employer's control. - (iv) Are the employees' tasks integral to the employer's business? - (v) Whether the provisions of the contract are consistent with a contract of service? - (vi) Who owns the equipment or technology for the work? - (vii) What degree of financial risk does the employee take? and; - (viii) Any other relevant circumstances. - [20] Returning to the present case, we were not presented with a written contract. Therefore, the existence of an employment relationship must be inferred from the circumstances, bearing in mind that an oral contract of employment is perfectly legal under Section 24EA. The Claimant testified that he was a manager at the Respondent company. The Respondent's witnesses denied this and maintained that he was an on-call driver who was given work as and when the Respondent had tourist customers. The payment log for the period 2018-2019 shows that the Claimant with telephone number 077-2321766 worked for ¹ day in July 2018, 5 days in October 2018, and 2 days in November 2018. There are corresponding payments for each period. The testimonies of RW2 and RW3 both indicated that they were on-call drivers, paid on a commission basis. The Claimant was paid UGX 20,000/= (shillings twenty thousand) per day

*7* (20231 UGIC 54

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⁸ [2024] UGIC 48

⁹ [20251 UGIC ¹

for each day he worked. Under cross-examination, he conceded that the exit letter, REX2, was not intended to prove that the Respondent employed him for two years. This was ostensibly ⁱ the only piece of evidence of long-term employment, discounted by the Claimant's admission ' ⁷ that the purpose of securing ^a certificate of service was to "look for some money", in his words. We understood that to mean that this was not a certificate of service within the meaning of Section 60EA. It means that it did not certify an employer-employee relationship between the Claimant and Respondent and predated his alleged termination.

- [21] Therefore, in our judgment and considering the dicta of the decided cases above, on the evidence before us, we cannot conclude that the Respondent was in a position of salaried longterm employment with the Respondent The Respondent's evidence is credible and supports the proposition of temporary work as on-call, commission driver. In terms of the EA, such work would make the Claimant a casual employee of the Respondent. Section 2EA defines a casual employee as a person who works on a daily or hourly basis, for whom payment of wages is due after each day's work. The evidence of payment logs shows that the Claimant was paid daily. We were not shown that the Claimant worked continuously for the Respondent for over four months so that we may conclude that the provisions of Regulation 39 of the Employment Regulations S.l 61-2011 (ER) which provides that a person shall not be employed on a casual basis for a period exceeding four months. Continuous service, as defined under Section 82EA, refers to an uninterrupted period of employment with the same employer. From the evidence before us, for the period July to November 2018, the Claimant's employment was interrupted. He served for one day in July, five days in October and two days in November. From this evidence, it can be inferred that he was employed on a casual basis, and our inescapable conclusion is that the Claimant was a casual employee. - [22] Issue one would be answered in the affirmative. The Claimant was a casual employee of the Respondent.

*Issue 2: Whether the Claimant was unfairly and unlawfully terminated.*

- [23] In her approach to this issue, Ms. Kusemererwa argued that any terminated or dismissed employee is entitled to justification for termination. She cited *Mufumba,* Sections 68(1) and (2) and 75(1) EA. Her view was that following his illness for two weeks, the Claimant was unfairly and unlawfully terminated in July 2021. - [24] In employment law, the onus of.establishing the fact of termination lies on the employee. In *Mutoni,* this Court was confronted with a claim of unfair termination, where there was no letter of termination, as is the case here. We found that the employee's allegations of verbal termination were unfounded. In the present case, the Claimant asserts that he was ill for two weeks; however, he does not present any medical evidence to support this claim. Furthermore, considering our finding of casual employment in issue one above, it would be difficult to prove any fact of termination because the Claimant worked on an call basis, as and when work was available. Therefore, it is ourjudgment that the Claimant has not, on the balance of probabilities, established that he was terminated. And because of this, it would be impossible to contend that he was unfairly or unlawfully terminated. As a result, issue two would be resolved negatively.

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# What remedies are available to the parties?

# Unpaid Wages

[25] Under this head of claim, Ms. Kusemererwa was contending for UGX 2,880,000/= (shillings two million eight hundred eighty thousand) in unpaid wages. Counsel cited various provisions in support of this claim. In light of our findings on issue one, we do not conclude that the Claimant has established a claim for any unpaid wages. He was paid his daily wages as and when he completed each task. And under cross-examination, he admitted that the claims for allowances for Plan Uganda, RTI GAPP, and JSI were for assignments outside his engagement with the Respondent. The law on admissions is clear. Therefore, it is our conclusion that the claim for unpaid wages fails.

# General Damages

[26] General damages are those damages such as the law will presume to be the direct natural consequence of the action complained of¹⁰. In terms they are based on the common law principle of *restitutio in integrum."* In the present case, no termination was established such that the law should presume general damages to flow from the act complained of. The claim for general damages falls.

# Final orders of the Court

- [27] The orders of this Court are as follows: - (i) It is declared that the Claimant was a casual employee of the Respondent. - (ii) The Claimant's claim for unpaid wages and general damages fails. - (iii) As the matter only succeeds partially to the extent of the declaration in paragraph 27[i] above, each party shall bear its costs.

### It is so ordered.

# Delivered and dated at Gulu this 16th day of June 2025

| Anthon<br>yVhbwire Musana, | | |------------------------------------------------------------------------------------------------------------------------------------------------------------------|-----------------------------------------------------------------------------------------------| | iiqustrial<br>Judge,<br>Court | | | | | | 10 Stroms vHulchmsonfJ<br>iJ\$o]A. C 515<br>Stanbic Bank <u) 2020<="" 60="" appeal="" civil="" constant="" ltd="" no.="" of="" okou="" td="" v=""><td>I</td></u)> | I | | | LDR 03/2021 ObongN. WVVinceToura'andTrawl Ltdv\\-.xuiGulu. AnlhonvWabwire Musana).14.06.20.'-. |

### **The Panelists Agree**

| 1. | Hon. Adrine<br>Namara, | | |-------------------|------------------------------------------------------------------------------------|-----------------------------------------------------------------------------| | 2. | Hon. Emmanuel<br>Bigirimana | /<br>& | | 3. | Hon. Can Amos<br>Lapenga | r | | 16th June | 2025 | | | | 2.52 p.m. | | | | Appearances | | | 1. | For the Claimant: | H/B for<br>Mr. Samuel<br>Openy<br>Ms. Bridge Kusemererwa | | 2. | Respondent:<br>None<br>for<br>the | | | Court | Clerk: | Mr. Samuel<br>Mukiza. | | Mr. | Openy | Matter<br>for<br>award. We<br>are ready<br>to<br>receive<br>it. | | Court: | | Award<br>delivered<br>in open Court. | | Anthony<br>Judge, | 3.07 p.m<br>I<br>Wabwi<br>re Musana,<br>.ial Court<br>of<br>Indus<br>Uganda.<br>Xj | I. DR 03/2021 ObongN. WV VinceTon>y^nc(T<br>ntbony WabwireMusana1j.13.06.2025 |