[2025] UGIC 26


# THE REPUBLIC OF UGANDA IN THE INDUSTRIAL COURT OF UGANDA AT KAMPALA **LABOUR DISPUTE MISC. APPLN. NO. 155 OF 2023**

(Arising From MGLSD/LC/323/2021)

APPLICANT STANBIC BANK UGANDA LTD ...................................

# $\mathbf{V}$

KISEMBO DEO ................. RESPONDENT

### Before:

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

## **Panelists**

- 1. Hon. Ebyau Fidel, - 2. Hon. Harriet Mugamba Nganzi & - 3. Hon. FX Mubuuke.

## **Representation:**

- 1. Mr. James Zeere Holding brief for Ferdinand Musimenta of M/s. S & L Advocates for the Applicant. - 2. Mr. Nuwandinda Johnan Rwambuka of M/s. Rwambuka & Co. Advocates for the Respondent.

## **RULING**

## **Introduction**

This Applicant seeks leave to Appeal against the findings of the Labour $[1]$ Office/Assistant Commissioner at the Ministry of Gender, Labour & Social Development on matters of fact and for Costs to be provided for.

The Application is brought under Section 93 of the Employment Act, and Order 51, Rule 1 & 3 of the Civil Procedure Rules s.1 71-1.

#### **Background**

$[2]$ According to the Applicant, Labour Complaint No. MGLSD/LC/NO. 323/2021 was filed before the Ministry of Gender, Labour and Social Development, against the Respondent, for unlawful dismissal, compensation, severance allowance and repatriation pay.

On 1/09/2023, Mr. Apollo Onzoma, the Labour Officer/Assistant Commissioner Industrial Relations- Ministry of Gender, Labour and Social Development issued an award in favor of the Respondent and awarded him Ugx. 83,505,407/= as compensation, severance allowance, repatriation pay, and referred the prayer for general damages to the Industrial Court.

The Applicant, being dissatisfied with the award decision of the Labour Officer, is desirous of appealing against his award and the grounds formulated for the Appeal include questions for resolution on matters of fact.

#### The Applicant's case

- The Applicant's case as stated in the Affidavit deponed by Mr. Arnold Atwine, $[3]$ Senior Legal Advisor, Risk & Dispute Management in the Legal Department of the Applicant is summarized as follows: - a) That there is no automatic Right of appeal against a matter of fact from the decision made by the Labour officer/Assistant Commissioner.

b) That the Labour Officer/Assistant Commissioner found that the Respondent had not accorded the Complainant a fair hearing, that the Respondent had a pending grievance and therefore could not be subjected to disciplinary hearing and that the PIP was used as a tool to make work of an employee difficult which are findings on matters of fact and the Applicant is dissatisfied with and desires to appeal the same.

- c) That Labour Officer failed to properly evaluate the evidence submitted by the Applicant while making his findings on all matters of fact. - d) That it is in the interest of justice that this application is granted.

#### **The Respondents case**

- [4] The Respondent's case as stated in the Affidavit deponed by Kisembo Deo, the Respondent himself is summarized as follows: - a) That on advice of his lawyers M/s. Rwambuka & Co. Advocates, he believes that this application is devoid of merit and should be dismissed with costs. This is because the matters stated in the Application are matters of law and the Applicant does not need leave of this court to appeal the same. - b) That the Application should be dismissed with costs.

#### **Submissions**

[5] The Applicant filed two (2) different sets of submissions on the same date, 11/12/2024. One set summarized the issues the Applicant framed for resolution on appeal and the other contested the basis upon which the Labour officer made findings of fact. It seems Counsel for the Respondent only responded to one set. In the circumstances, we shall onlf consider the submissions which were responded to by Counsel for the Respondent.

It was submitted for the Applicant that the Respondent was an employee of the Applicant from 1/11/2011 until December 2020. Following an appraisal on 20/12/2020, his performance was found wanting, consequently he was placed on a PIP which he refused to sign, contrary to Policy requirements. He was subsequently subjected to disciplinary proceedings which he declined to attend. He was later dismissed and advised of his right to appeal which he did not exercise. The Respondent filed Labour Dispute MGLSD/LC No.323 of 2021 against the Applicant which was heard and determined by the Labour Officer/Assistant 'Cofnmissioner in the Ministry of Gender Labour and Social Development. The Labour Officer found in favour of the respondent and awarded him Ugx. 83,505,407/- as compensation and severance for unlawful dismissal.

The Applicant is dissatisfied with the labour officers' findings on matters of fact, however, there is no automatic right of appeal against such findings under section 93(2) of the Employment Act.

That the Labour Officer held among others that the Applicant had not accorded the Respondent a fair hearing, that the Respondent had a pending grievance and therefore could not be subjected to disciplinary hearing, that the Performance

Improvement Plan was used as a tool to make work of an employee difficult and in reaching the conclusions that Labor officer considered several facts and on that basis determined that the Respondent was entitled to Compensation, severance allowance and Repatriation. He further submitted that the Labour officer made findings based on facts that were either not adduced in evidence, or misapplied facts that were presented, and that he failed to understand or appreciate the difference between a grievance and dispute, as testified by the witness.

He prayed that from the grounds set out in the Affidavit in support, jiseyeral questions arise regarding the evaluation of evidence that supported the'Labour Officer's decision. Therefore, in the interest of justice, this application should be granted because the evidence in this matter needs to be re-evaluated on appeal.

In reply, Counsel for the Respondent submitted that '.the grounds regarding evaluation and non-evaluation of evidence ; are already contained in the Memorandum of Appeal filed on 07/09/2023 and that there are no grounds of fact touching the decision of the Labour officer that have been proposed for which leave is sought.

He insisted that the questions of facts. forming part of the decision of the labour officer have not been identified by the Applicant in the Application and the affidavits in support, and there is ho neW proposed memorandum of appeal which has matters of fact that the application seeks to appeal on. Therefore, there is no basis for this application, it should be dismissed with costs.

**% X Decision gfCourt;**

[6]

**Sectioh 94(2) of the Employment Act** provides:

■. *"An appeal under this section shall be a question of law and with leave of the Industrial Court, on a question of fact forming part of the decision of the labour officer."*

It is an agreed position of the law that an appeal consists of an error of law or fact in the Judgment, which the appellant believes occasioned a miscarriage of justice and wants the Appellate court to resolve by setting aside the judgment. The error or misdirection must be concise and distinct, and objections relevant to the appeal. Spry V. P. in *Sango Bay Estate* v *Dresdner Bank & Attorney General* [1971] EA17 cited with approval by Kainamura J, in *Ekisa George & Ors v Bank ofAfrica & Ors*

Miscn. Appln. 29 [2017] UGcommC, 151, guided that, Appeals are granted where there are grounds that merit serious judicial consideration.

[7] Section 93(2) of the Employment Act, 2006, provides that, *'An appeal underthe Section shall lie on a question oflaw and with leave ofthe Industrial Court, on a question of fact forming part of the decision of the Labour officer."* Therefore, an Applicant seeking leave to appeal on grounds of fact or mixed law and fact, under section 93 (2) of the Employment Act, must satisfy Court that the question or questions of fact upon which they intend to appeal formed part of the decision of the Labour officer.

This Court in *Bureau Veritas Uganda Limited v Davlin Kamugisha* LD Misc. Appln. No. 54 of 2017, was of the considered opinion the framers of section 93(2) (supra), intended to preserve the autonomy of the Labour officer as an arbitrator or adjudicator, as a finder of fact, hence making it mandatory for a party seeking leave to appeal based on matters of fact or of mixed law and fact to first seek leave of court. This is because it is the role of the trial Court or forum to determine facts and for the Appellate court to determine points of law.

[8] We have had an opportunity to consider the proposed grounds of appeal, which were filed in this court on the 7/09/2024, attached to the application, as annexure "B" and established that they all raise questions regarding the Labour Officer/Commissioner of Labour's evaluation of the evidence that was placed before him. %. -

As correctly submitted by Counsel for the Respondent, the Applicants fell short of specifying the error of fact they wish the Appellate court to rectify nor have they proposed any question of fact they challenge.

It is clear that the Applicant would like this court to re-evaluate the evidence on the record of proceedings before the Assistant Commissioner, so that we can come to our conclusion and nothing else.

The Applicant has not dispensed with the responsibility of specifying which questions of fact forming part of the labour officer's award they seek to challenge, and which require serious judicial consideration on appeal.

In the circumstances, we find no basis for this application and believe that it is only intended to delay justice. The Application has no merit, it is dismissed with costs to the Respondent.


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**4**

#### **Orders:**

**V**

- 1. The application is dismissed. - 2. Costs granted to the Respondent.

Signed in Chambers at Kampala this **5th** day of **March 2025.**

J **5th March 2025 2:30 pm** Hon. Justice Linda Lillian Tumusiime Mugisha, **Head Judge** % **The Panelists Agree: V** 1. Hon. Ebyau Fidel, 2. Hon. Harriet Mugambwa Nganzi & 3. Hon. FX Mubuuke. J\* ^> r **^< \v** XX?