[1999] UGHCCD 2

## OF UGANDA

### OF UGANDA AT KAMPALA

#### CIVIL SUIT 759/96

OKWI PLAINTIFF

#### - VERSUS -

TRANSOCEAN DEFENDANT '

#### JUDGEMENT

The plaintiff sued his former employer claiming general special, and exemplary damages with interest at the rate of 35°/⁰ per annum on the damages and the costs of the suit.

post. It was stipulated in the letter of first appointment that the plaintiff will be governed by was suspended from duty and review of the decision but to no avail - hence this suit. the company's regulations and conditions of service. On the 9th May 1995 he was posted to Nakawa Inland Port as a receiving clerk of motor vehicles. On the 4th January 1996 he on the 30th January 1996 he was summarily dismissed. He made some appeals for a The plaintiff was on the 30th September 1974 employed as a driver and became a member of the workers union on the 29th day of November 1976, he was confirmed in the

written statement of defence in which it admitted that the The defendant filed a its employer. It was also admitted that he was suspended and later dismissed id that the plaintiff in the course of his employment connived with plaintiff was butjustified it on the grouni one of its customer by indicating that a vehicle a Mazda pick-up had been in the warehoi

efeas it had been in the warehouse for over a year. It was averred the plaintiff did th, tQ ^a ioss to \_

o contended that the plaintiff failed to give an explanation and therefore was y suspended for purposes of investigations as stipulated in article 22 of the terms and conditions of service of the defendant.

were made: the only witness who testified and the defendant also called one p abirye a Senior Personnel and Administration Officer. When the defedant opened its case, the following admissions The plaintiff was

- 1. 104,648/ = . The plaintiff s half salary for the month of December 195 in the sum of shs. - 2. Housing allowance for the same month amounting to shs. 45,000/ = .

3. Lunch allowance for December amounting to shs. 11,000/=,

4. Receiving allowance for the same month amounting to shs. 36,000/=.

Consequently judgment was entered in favour of the plaintiff in the sum of shs. 1,018,468/= (one million, eighteen thousand four hundred and sixty eight).

The following are therefore the remaining issues to determine.

- whether the suspension and dismissal of the plaintiff was unlawful. (1) - whether the plaintiff suffered damages and loss. **(2)** - whether he is entitled to the reliefs claimed. (3) - (4) whether the defendant is liable.

by dismissing that an employer has him/her without notice Since the facts leading to the institution of this suit are not disputed, I shall deal with the issues straight away beginning with the first one. The law I think is quite settled a right to terminate the contract of service of his/her employee if the contract of employment provides so

r method of termination is where the employee has been guilty of. a serious breach of duty which in essence amounts to a repudiation of his obligations under the contract of employment.

**- |O-**

**5 •£'**

was submitted by counsel for the plaintiff that the terms and • conditions of service set out in the union agreement (exh. P.2) governed the relationship between the plaintiff and the defedant. On the plaintiff's suspension counsel relied on Article 22 of the said exhibit which provide as follows: 'In the instant it

**5**

**20**

an employee from duty on suspecting him/her to have committed an offence which requires investigation." "The company may suspend

According to counsel the offence referred to above must fall within the grounds provided 10 under articles 23 and 24 which provide for termination of service and misconduct justifying summary dismissal respectively. (

#### Article 23 says:-

Either party may terminate the contract of employment between an employee on a) 15 permanent terms and the company by giving to other party three months written notice or three month's basic salary in lieu of notice."

The following reasons shall inter-alia, constitute grounds for termination of services:- b)

- Medical unfitness. 1. - Inefficiency in performance of duties. 2.

3. Abscondment.

4. Failure to obtain the necessary qualifications (after being sponsored by

required for proper performance of the job. the Company) which are

Voluntary resignation. 5.

**c)**

**/**

e the employee shall be entitled to the following:-

Salary and due allowance up to the date of termination.

prorated up to the date of termination, Annual leave

Article 24:'

a)

**•2.**

1.

Upon termination of service

provides for summary/instant dismissal. It

*i*

says:-

- The company may summarily dismiss from its services an employee who shall be guilty of one or more of the following acts of misconduct:- - Wilful neglect of company interests leading to loss or damage of company property and revenue; 1)

**S ji**

**i**

i

I!

!■

**i**

**I"**

**I**

- •'2) Wilful insubordination or disobedience of lawful orders. K) - **3)** Performance of company duties negligently or wrongly if it is his/her duty to perform the same property. - Fighting or assault while on duty, respiting in bodily injury. 4) *%* - Theft, fraud or other acts of dishonesty. 5) - **6)** Wilful or malicious damage to company property." 15 - Upon summary dismissal, the employee shall lose all terminal benefits payable b) by the company except the following:- - 1. Salary and allowances due up to the date of dismissal. - **2.** include all allowances." 20 Annual leave prorated to the date of dismissal. Such payment shall

It was counsel's contention that the letter of suspension (exhibit P.4) did not disclose the offence which the plaintiff was suspected to have committed and the copy of the letter was not copied to the Union as was required under article 22(b). He claimed that failure by the defendant to comply with the provision of the regulations renders the suspension of tire

**4**

*i*

plaintiff illegal. Onthepla' f ^> Ism\*ssal, it was contended that there is no evidence that investigations were carried o ^t • . r that a disciplinary committee held any proceedings against the plaintiff leading to thp u ' \* .. . . subsequent dismissal. He invited court to believe the testimony ' hat he was dismissed without being given hearing. He therefore contended issal of the plaintiff without first complying with the provision of article 22(c) renders the dismissal illegal. He cited a number of authorities namely:-

**I q**

**y**

IQ,

**20**

Jabi v. Mbale Municipa^l Council [1975] H. C. B. 191

Mimira vs N. I. C. [19981 H. C1 110; And

1LR-C.. [1975] H. C. 225 James Kurya v.

wheie it was held that dismissal would comply with staff regulations would render the dismissal wrongful. Counsel invited court to answer the first issue in the affirmative.

On the part of the defendant, it was submitted that the union agreement did not apply to this case because the terms and conditions of service contained in exhibit D.l superseded the union agreement. Counsel invited court to disregard the submissions of the plaintiff on this point.

given a dismissal was justified. On the allegations that the plaintiff was not aware of the offence which he allegedly committed, counsel contended that this was not true since he was requested twice by management to give an explanation regarding a vehicle Mazda Bonga. Referring to the testimony of Isabirye (D. W.l)s that the letter of suspension and dismissal mentioned "malpractice at Nakawa" were specific enough. She also submitted that the plaintiff was chance to defend himself but his defence was unsatisfactory and therefore his

must had to three documents which were In order to resolve the dispute regard

tendered by the The first is the letter of by the defendant. appointment (exh P n u *¹* stated in paragraph thereof that:-

of Service." u W'^U be governed by the Company's Regulations and conditions The letter *of* confirmalron (exh. P.2) stated in paragraph

s remain as stipulated in the Staff Regulations and conditions of Service"

or separate terms and conditions from these regulations. ^P ff accepted the terms offered. The staff regulations (exh. D.l) which counsel for the defendant relied on provides in Regulation two, that they will apply to any employee who is appointed in the salary Grades shown in schedule ¹ except these on contract. Schedule ¹ does not mention drivers. Furthermore Regulation 2.3 states that all group employees (Grades D; E; F;F;) will be subject to the terms and conditions set out in schedule 3 thereof. Gioup Employees are defined in regulation 3.6 to mean any non-pensionable employees whose terms and conditions of service are governed by Union Management Agreements and

driver or receiving clerk was a member of the union and therefore was governed by the Union Management agreement (exhibit P.2) and its absence, he would have been governed **5\$** It seems- fairly obvious to me at least from the above extracts that the plaintiff as a by the provision of schedule 3 of exhibit D.l.

The issue to resolve is whether the management of the defendant complied with the provisions in the Union agreement which counsel for the plaintiff relied upon. The letter of suspension (exhibit P.4) and that of dismissal (exhibit P.5) informed the plaintiff that he was involved in malpraclice at Nakawa Inland Pori. Prior 10 that, on OS/11/95 Ire received a routing slip (exhibit P.3) asking him to explain the circumstances that led him to prepare a document showing that a unit came in 1994. The explanation was required by 5.00p.m. that **15 ⁱ**

**5**

**i**

**1 I**

*e* Assistant Secretary Personnel wrote to the plaintiff a letter explain why he made pick-up vehicle as if it entered the port in an inspection report on 21/10/95 On a Mazda Bongo s just entering the port when he knew very well that the unit had December 1994. same day. On 11/. 11/95, asking him to

**^~ H- l-**

*I*

this year." In response to this request the plaintiff on 09/11/95 wrote the following explanation, remember on 21/10/95 I inspected a unit which the serial is above. Clearing agent is Amazon but according to the vehicle which is found faulty number I am not awaie of that. I am aware the vehicle with Serial No. above is not of 1994. It is for

**I**

**1**

**!**

**i**

**!**

**I**

I

**I**

**I !**

9 i 1 I

J

was obtained from customs documents at thegate. The plaintiff in this explanation did not state his source of information but in his testimony in Court he stated that the information

¹⁵ of the "offence" or malpractice he had committed. ^I am not persuaded that the plaintiff did not know the "offence" against him. He was informed in exhibits P.3 that he had inspected of one's duty is in my view conduct which is the letter of suspension and dismissal did not spell out the nature of malpractice he had allegedly committed. In other words, he was complaining that he did not know the nature an explanation which I consider to be vague. The plaintiff in his evidence in Chief and his Counsel's submissions complained that allegedly entered in 1994. The plaintilf gave In any case, if the charge agamsLhjmJhad not been clear.to him, he\_.shouldhave sought clarification from the employer at the dme^fsuspension. Under the terms of employment thTTlaintiff was^Zispended after initial investigations revealed that he had falsified an inspection report during the course incompatible with due and faithful discharge of a servant's duty to his master. Such conduct . . O/1 nf Mhihit ^P ² His suspension and subsequent dismissal was would fall under article24\_ oi exmon r. . a vehicle and made a report that it had entered the port in 1995 (October) when it had

**7**

*I*

therefore lawful. The first issue is answered in the negative.

As regards the rest of the issues, I think the plaintiff is not entitled to any of the reliefs. He did not work in the year 1996 so he is not entitled to any leave or any allowance. The plaintiff lost all his benefits on being summarily dismissed since this was provided for in the terms of engagement.

Judgment is accordingly entered for the plaintiff in the sum of shs. $1.018,648/=$ as admitted by the defendant. The rest of his claims are dismissed with costs to the defendant.

#### C. K. Byamugisha

Judge

$31.6-9$ <br> $31.1$ <br> $3.6-9$ <br> $3.1$ <br> $3.6-9$ <br> $3.1$ <br> $3.6-9$ <br> $3.1$ <br> $3.6-9$ <br> $3.1$

$\mathcal{S} \cdot \mathcal{G} \cdot \mathcal{G} \cdot \mathcal{G}$

let in cu.<br>Emera for put rana Throno for Africano<br>interneur dermed as nal be the ue cle d und la $2.6.99$

$\frac{1}{\sqrt{2}}$

## REPUBLIC OF UGINDA

IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA

# CIVIL SUIT NO. 759 OF 1996

ELARIO ONGENG OKWIR

-VFReus

•••PLAINTIFF.

• • DEFINDANT.

TRANSOCEAN (U) LIMITED

## DECREE IN ORIGINAL SUIT

THIS SUIT Coming for final disposal on this 2nd day of June 1999 before Her Lordship Justice Mrs. BYAMUGISHA in the presence of EME U GEORGE Esq. Counsel for the plaintiff and HARRIET DIANA HUSCHE Esq. Counsel for the defendant, IT IS IEREBY ORDERED and DECREED as follows:-

- $\mathbf{1}$ . THAT judgement is entered in favour of the plaintiff in the sum of Shs.1.018.648 (one million eighteen thousand six hundred fourty eight only) is admitted by the defendant. - THAT the other privats of the plaintiff are dismissed. $2\epsilon$

IT IS FURTHER ORDERED that the plaintiff pays the costs of the suit.

We approve to the above:-

M/S EMESU AND COMPANY ADVOCATES. COUNSEL FOR THE PLAINTIFF.

We approve to the above:-HOMIGYCL M/S MUSOKE AND COMPANY ADVOCATES. COUNSEL FOR THE DEFENDANT.

GIVEN under my hand and the Seal of Court this ......day of June 1999.

**EGISTRAR.**

DRAWN AND FILED BY: M/S MUSOKE AND COMPANY ADVOCATES? $P_0$ , BOX 6573. KAMPALA.