[2025] UGIC 17


## **THE REPUBLIC OF UGANDA IN THE INDUSTRIAL COURT OF UGANDA AT KAMPALA, LABOUR DISPUTE APPEAL NO. 017 OF 2021** *(Arising from Labour Complaint No. MGLSD/LC/586/2020)*

# **WANYOTO CABOT DESDERIOUS:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT**

# **VERSUS**

# **UGANDA CIVIL AVIATION AUTHORITY:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

## **Before:**

The Hon. Mr. Justice Anthony Wabwire Musana

**The Panelists:** Hon. Jimmy Musimbi, Hon. Emmanuel Bigirimana & Hon. Can Amos Lapenga.

### **Representation:**

*1. Mr. Anthony Wanyama of Uganda Artisans & General Workers Union, for the Appellant. 2. It's Law Chambers represents the Respondent.*

#### *Fly note:*

*Employment law: Restructuring-definition-elements and effect of workplace restructuring-allegation of unfair and discriminatory job grading and placement.*

*Retrospective enhancement ofremuneration and salary.*

#### *Case Summary:*

*The appeal concerns a dispute over salary grade and terminal benefits following a company restructuring. The Appellant challenged his placement in a lower salary grade, arguing it negatively impacted his final compensation and constituted discrimination. The Labour Office initially dismissed his claims, finding no prejudice or discriminatory practices in the employer's actions. Dissatisfied, the employee appealed, raising several grounds related to the evaluation ofevidence, the existence ofa board resolution, and allegations ofunfair treatment compared to colleagues. The appellate court then reviewed both sides' evidence and legal arguments, upholding the Labour Office's decision and dismissing the appeal, finding no fault in the employer's restructuring or the computation of benefits.*

### **AWARD**

### **Introduction**

**[1]** This appeal raises questions regarding the evaluation of evidence on the computation of salary benefits based on two different grades following ^a restructuring process at the Respondent. In brief, on a claim that he had been disadvantaged by being paid at CAA Salary Grade 10 instead of 12, on the 3rd day of August, 2021, Ms. Martha Irankunda, L. O at the Ministry of Gender, Labour and Social Development *(from now LO),* found that the Respondent's placement of the Appellant in CAA salary grade 10 did not prejudice him both in terms of salary increment and terminal benefits.

Page 2 of 17

## **The Appellant's case at the Labour Office**

**[2]** On the 10th of August 1993, the Respondent employed the Appellant as a Revenue Assistant at CAA salary Scale G1. He was confirmed on the 27lh day of February 1996. In 2007, he was promoted to Strategic Planning Officer at CAA revised structure Grade 12. Around 2014, he found he was paid at Grade 10. He felt that this was discriminatory, and in November 2020, after his retirement, he lodged a complaint before the LO seeking payment of UGX 933,836,620/= being his properly computed salary and National Social Security Fund Contribution for 23.83 years. The main complaint was that his salary had been calculated at Grade 10 instead of Grade 12.

## **The Respondent's case at the Labour Office**

**[3]** The Respondent denied the claim, asserting that the alteration of the Appellant's salary grade from CAA grade 12 to 10 was based on the Respondent's Board resolution of ^a meeting held on the 13th of November 2015, compressing all salaries of Officers from Grade 12 and 13 to Grade 10. The Respondent argued that this structure entitled the Appellant to UGX 4,805,537/= per month. On this basis, UGX 370,517,097/= was computed and paid to the Appellant as his terminal benefits.

### **The LO's award**

- [4] In her award, the LO considered three questions, which we have paraphrased for convenience in this appeak(i) whether the Appellant was entitled to salary Grade 12 in the computation of his terminal benefits,(ii) whether he was discriminated against, and (iii) what remedies were available to him. - [5] On the first question, she found that the Appellant had been rightly placed in salary grade 10, and his terminal benefits were computed correctly. On the second question, the LO considered the board resolution of the 15th of November 2015 and found that the resolution affected all managers and other categories of employees who were not placed on the same salary scale. She found that the Claimant could not prove discrimination in the promotions criteria. The LO was of the persuasion that the Appellant did not specify any ground or basis for discrimination under Article 21(3) of the 1995 Constitution or Section 6(1) *(now Section 5(1)* of the Employment Act 2006.¹ She found that the differentiating elements of purposeful differentiation and unfavourable bias were unsupported by the facts, and therefore, the appellant was not discriminated against. On the final question, the LO declined to grant the appellant any remedies.

### **The grounds of appeal**

- **[6]** Dissatisfied with the LO's award, the Appellant preferred this appeal on seven grounds, hereafter following: - (i) That the presiding LO erred in law when she failed to give a ruling in her judgment on an objection raised by the complainant regarding extra documents filed by the Respondent out of time and without consent of the complainant, which documents the complainant believes were considered by the presiding LO in reaching the final decision.

- (ii) The presiding LO erred in law when she failed to properly evaluate the available evidence before her and applicable law and held that the complainant was not entitled to salary grade 12 in the computation of his terminal benefits. - (iii) That the presiding LO erred in law when she failed to properly evaluate the available evidence and consequently not holding that there was no board resolution to compress salary grade 13 and 12 to get 10 which was used in the computation of the complainant's terminal benefits. 4. 5. 6. 7. 8. - (iv) That the presiding LO erred in law in not holding that the application of salary grade 10 in the computation of the complainant's terminal benefits was unlawful and retrospective in nature. - (v) That the presiding LO erred in law when she failed to properly evaluate evidence available before her and consequently held that there was no error in the process of giving new positions to Okot Charles and Mubiru Hassan. - (vi) That the presiding LO erred in law when she failed to properly evaluate evidence before her and held that the complainant was not discriminated amongst his fellow employees, notably among Okot Charles, Mubiru Hassan and Bukenya Joseph. - (vii) That the presiding LO erred in law when she failed to properly evaluate the evidence before her and consequently not granting the 1st remedy of order for payment of UGX 933,836,620 and forwarding other remedies namely, General Damages, Exemplary Damages, Interest and Costs, to the industrial Court for determination. - [7] The Appellant proposed that the appeal be allowed and the LO's award and/or decision and/or orders be set aside. We were asked to grant all the Appellant's prayers sought before the LO be granted. The Respondent employed the Shakespearean analogy of *"A rose by any other name would smell as sweet"* to support the LO's decision. We directed the parties to file their written arguments, which we have summarised in this award.

### **Analysis and Decision of the Court**

## **The Duties of a First Appellate Court**

[8] The first appellate Court must re-evaluate or reappraise the evidence adduced before the LO in full and arrive at its conclusions.[2](#page-2-0)

### **Appellant's submissions**

**[9]** Mr. Wanyama, appearing for the Appellant, abandoned ground ¹ of the appeal. He grouped grounds 2, 3 and 4, and grounds 5 and 6 and argued ground 7 alone.

### **Grounds 2, 3 and 4**

**[10]** The Appellant's chief complaint on these grounds is a failure to evaluate evidence. It was submitted that the Respondent's Board of Directors resolution was made on, 13th November 2015 and resolved to compress all Salary Grades, mainly salary Grades 12 **^| ^13Jnto^ala r^**

<span id="page-2-0"></span>**² See Father Nanensio Begumisa and 3 Ors v. Eric Tiberaga [2004] KALR ²³⁶ and Kifamunte Henry ^V Uganda, S. C CrimiAl^eaU^o^ 1997**

> **LOA 017 of 2021. Wanyoto C. D v OCAA. Award. Anthony V iiwire MusanaJ. 7.03.2025**

Grade 10. It placed the Appellant in Grade 10. The Appellant challenged the legality of these changes because they were effective on the 14th of July 2014 and were made before the board meeting. It was argued that the LO failed to evaluate this evidence, and his salary was altered without his consent and was, therefore, illegal. We were referred to *Mrs. Mary Pamela Ssozi v Public Procurement and Disposal ofAssents Authority[3](#page-3-0)* for the proposition that the law did not permit unilateral variation of employment terms. Our attention was also directed to *Francis v Canadian Imperial Bank of Commerce[4](#page-3-1).* Mr. Wanyama faulted the LO for finding that *Nakyewa and others v Makerere University[5](#page-3-2)* did not apply to this labour dispute because there was no increase in salary in those authorities as it was in this labour dispute from which this appeal arose. He argued that the decision of the Board to change the salary structure was not retrospective. In *Nakyewa,* Mr. Wanyama contends that the Industrial Court had found that a salary scale developed in 2017 could not be applied retrospectively.

**[11]** The complaint in the present case was that the retrospective application of a salary grade was over 23 years. It was said that though there was a slight increase in the monthly salary of the Appellant from UGX 4,460,164/= (shillings four million four hundred sixty thousand one hundred sixty four) to UGX 4,805,537/= (shillings four million eight hundred five thousand five hundred thirty seven) under salary grade 10, the proper computation would have been at a salary scale 12 resulting in a monthly salary of UGX 14,367,220/= (fourteen million three hundred sixty seven thousand two hundred twenty) and terminal benefits of UGX 1,124,039,758/= (one billion one hundred twenty four million thirty nine thousand seven hundred fifty eight). It was suggested that the LO did not consider exhibits "Dl"& "E", the testimony of witnesses at pages 10 to 11 of the record of appeal, the lack of the JAVA evaluation, the LoriMak report, and Mr. Gilbert Obwor admission that it was not correct for the Respondent's Board to compress grade 13 and 12 to come up with 10 for the complainant. It was submitted that because the LO ignored the evidence, she came to a wrong conclusion.

#### **Ground 5 & 6**

**[12]** In this complaint, the Appellant faulted the LO for failure to properly evaluate evidence consisting of Exhibits "A7" and "A9" of discrimination of the Appellant regarding the appointments and promotions of Okot Charles, Mubiru Hassan and Bukenya Joseph. Mubiru and Okot were said to have been placed in senior positions and maintained at grade 12, while the complainant was degraded to grade 10. It was also argued that there was no internal advertisement or performance evaluation to determine staff competency for appointments. That the Respondent acted unfairly and handpicked and placed Mubiru and Okot and other staff in senior positions without any criteria to the Appellant's detriment, contrary to Article 21 of the 1995 Constitution and Section 6EA.[6](#page-3-3)

#### **Ground 7**

**[13]** In the final ground of appeal, it was submitted that the LO failed to properly evaluate the evidence before her and consequently did not grant the Appellant her first remedy of order for payment of UGX 933,836,620/= (shillings nine hundred thirty three million eight hundred thirty

<span id="page-3-0"></span>**³ 2022[UGCA] 191**

<span id="page-3-1"></span>**⁴ 1994 Can LU 1578**

<span id="page-3-2"></span>**⁵LDANo. 038 of 2018**

<span id="page-3-3"></span>**⁶ We were also referred to Wharton's Pocket Law Dictionary with Exhaustive References to Indian Case Law, Universal Law Publishing Co. N for the definition of discrimination. Delhi Indi ge 259**

six thousand six hundred twenty) and forwarding other remedies namely, general and exemplary damages, interest and costs, to the industrial Court for determination.

[14] We were asked to set aside the award and decision of the LO and allow the appeal.

**The Respondent's submissions**

**Grounds 2, 3 and 4**

- [15] In supporting the LO's decision, the Respondent submitted that the New Java Salary Grade 10 is the same as the Old Salary Grade 12, the "name" being irrelevant to the benefits. It was argued that an employer and employee enter a contract by letter/instrument of appointment and that the Board acted within the law during the 135th meeting of November 15th, 2015, when it approved the New Java Salary Structure compressing salary grade 13 and 12 to grade 10 which was used in the computation of the complainant's terminal benefits. We were invited to review the letters dated May 7th 2007, and February 20th 2014, by which the Appellant received a salary increment of 10% for the year 2013/2014 effective July 1st 2013. It was argued that these salary arrears were paid in accordance with the then UCAA Salary Grade 12, and the Appellant did not contest the legality. It was contended that the Appellant was appointed, promoted and received salary arrears and increments approved by the Board under this structure. Therefore, the Board acted within its policy mandate when, at its 135th meeting, it compressed salary grades 13 and 12 to grade 10. Thus, the LO properly evaluated the evidence and law, finding that the Respondent's Board acted within the law. - [16] Secondly, it was argued that the Respondent's Board lawfully approved the new Java salary structure. Salary Grade 12 was reserved for a newly introduced position of Principal Officers. To become a Principal Officer, the guideline was set in the Board Resolution under paragraph 6.1 (e) and (f) and issuance of a written placement instrument. The Appellant had provided no placement instrument to support this claim. The Board Resolution of November 13th, 2015, and the instrument dated January 5th, 2017, were ^a "Change in Name" of the "Salary Grade" by the Respondent that confirmed the Appellant as a Strategic Planning Officer in the New Java Salary Grade 10. - [17] Thirdly, it was submitted that board resolutions are a product of board papers supported by relevant attachments. A consultant was contracted to do a job evaluation, and it was recommended that the salary structure be compressed and new positions be created. We were invited to consider that the minutes do not include everything. Without compression, there would be no claim as the Appellant could not claim on a non-existent grade 12. - [18] Regarding computation of the Appellant's terminal benefits using New Java Salary Grade 10, our attention was directed at the instrument dated January 5th, 2017, at page 283 ROA, which increased the Appellant's salary. It was argued that the job evaluation exercise did not unilaterally amend and negatively impact any significant term of the Appellant's employment contract. It did not require the Appellant's consent, just like the salary increases in 2007 and 2014. - **[19]** It was also submitted that the idea of retrospective implementation of salary rfrom July 2014 was incorrect because the payroll summary from July 2013 to July 2017 showed changes'to the Appellants salary in December 2015 after he had been placed imGfadesICnaft^Hfie Board meeting of November 13th, 2015. It was submitted that the letter d(ted Januarj 5th, 2017, only

formalised what was already known by the Appellant through his monthly pay slips. The Appellant had not demonstrated that the Respondent's Board's retrospective ratification of salary increase in 2007 and 2014 or that payment of the arrears from which the Appellant benefited is illegal. It was submitted that in *Nakyewa,* the Court agreed with the computation to pay salary enhancement arrears of verified employees under their salary scale as directed by the Vice-Chancellor. Therefore, in the present case, the board resolution could enhance salary in the instant case.

- [20] Regarding the submission that the Appellant did not see the placement letter dated January 5th, 2017, until the hearing and was never consulted or evaluated, it was submitted that the Appellant's documents on pages 92 and 94 ROA, the Appellant presented letters dated January 28th, 2016, and November 14lh- 2016 dealing with salary both which are after the Board Resolution. - **[21]** Counsel submitted that the cases of *Ssozi* and *Francis* were inapplicable because there was no termination or dismissal to necessitate a hearing. The Appellant resigned of his own accord with effect from July 1st, 2017, and therefore did not meet the *Nakyewa* threshold showing a reduction in emoluments.

### **Grounds 5 and 6**

[22] It was submitted for the Respondent that the New Java Salary Grading affected all staff of the Respondent; thus, imputation of discrimination was farfetched. Citing Katureebe CJ, in *Madrama,* it was submitted that the letter dated January 5th, 2017, placing the Appellant in New Java Salary Grade 10 did not meet the discrimination criteria since what was done affected all the Respondent's staff. The Appellant's comparison to other employees misses the objective of Job Evaluation and Salary Grading, which is to state the roles of each staff member. According to the Respondent, Messrs. Bukenya, Mubiru, and Okot were always in different roles, and they never had the same salary as the Appellant, even after the approved restructuring in 2007 and 2017 of the New Java Salary Scale. It was suggested that the Appellant did not provide proof that the staff were placed contrary to the guideline in the Board Resolution.

#### **Rejoinder**

**[23]** Mr. Wanyama contended that William Shakespeare was not a legal authority in these proceedings. He submitted the new salary structure to effect before the purported resolution was passed. He also submitted that the Java Consultants' recommendation was not produced in Court. It was submitted that the LoriMak Africa Consultant interfaced with the Appellant and found him worthy of salary grade 12, as corroborated by RW1. It was suggested that if the LO had considered this evidence, she would have found that the Appellant was entitled to salary grade 12 in the computation of his terminal benefits. We were asked to take a keen interest in the authenticity of the Lorimark report as compared to the possibly manipulated Java documents. If the Presiding LO had properly evaluated this evidence, she would have concluded that it was wrong to degrade the appellant to salary level 10 based on such baseless and questionable JAVA documents and using the same to compute his terminal benefits. It was suggested that altering the appellant's salary grade from 12 to 10 negatively affected the

**[24]** It was also submitted that the Appellant was aware of his rights, and the Respondent had admitted that it did not communicate with or seek the Appellant's consent to alter his salary grade from 12 to 10. This, it was suggested, was the illegality in the purview of Ssozi to the effect that an employer cannot change the employment contract terms without furnishing fresh consideration to the employee and seeking his consent, especially when the previous terms were more favorable. It was submitted that the increase in salary in 2007 was based on the LoriMak report where the job evaluation was done by the LoriMak Africa Consultant, interfacing with the Appellant and was increased under salary grade 12. The increase at the beginning of 2014 was made after negotiations with the trade union, and it also increased under salary grade 12b. The Appellant faulted the Respondent for poor communication and submitted that the pay slips reflected a fluctuating salary. He contested the maltreatment until his retirement in June 2017. For his mistreatment, we were asked to grant general damages as prayed. The LO was faulted for failure to evaluate this evidence, leading to the wrong decision. It was suggested that the Appellant was not seeking arrears but a recomputation of his terminal benefits at grade 12 and for payment of the balance of UGX 933,863,620/= (shillings nine hundred thirty three million eight hundred sixty three thousand six hundred twenty). As a general rejoinder to the Respondent's submissions, the Appellant concluded that the fundamental question of why the Appellant's salary grade was altered from 12 to 10 remained unanswered. On the principles of justice and equity and as ^a court of equity grants, we were asked to grant an order for payment of the balance of UGX 933,836,620/= (shillings nine hundred thirty three million eight hundred sixty three thousand six hundred twenty) calculated under grade 12, with interest thereon from when it fell due till payment in full including the grant of ail other remedies as prayed.

### **Decision of the Court**

- **[25]** There are some common facts before the LO. On the 10th of August 1993, the Respondent employed the Appellant as a Revenue Assistant at CAA salary Scale G1. He was confirmed on the 27th day of February 1996. On the 7th of May 2007, he was promoted to Strategic Planning Officer at CAA revised structure Grade 12. After an evaluation, he was placed in grade 10. On the 11th day of May 2017, the Appellant notified the Respondent of his early retirement, effective 30th June 2017. The Respondent accepted his resignation and computed his retirement benefits at UGX 370,517,097/= (shilling three hundred seventy thousand five hundred seventeen thousand and ninety seven) consisting of one month's gross pay in lieu of transport, 23 months' pay as service gratuity, two months' gross pay for every ten years completed in service and untaken annual leave days. - **[26]** The Appellants' chief complaint was that his terminal benefits should have been computed on salary scale 12 and not 10. He argued that he had been wrongfully placed in grade 10 by a flawed restructuring process and discriminated against after his subordinates had been placed in higher ranks. These were his chief complaints. The LO disagreed and found that there had been no errors or discrimination in the Respondent's exercise of its managerial prerogative to adjust salary scales and position its staff. Dismissing the claim, she found that the computation of terminal benefits at grade 10 was correct and that the Appellant was not discriminated against. - **[27] In** their arguments in this appeal, the parties grouped grounds 2,3 and 4, argued grounds 5 and 6 together and argued ground 7 on its own. We will adopt the same structurerfpr the appeal.

**LD***A* **017 of 2O21. Wanyoto C. D v UCAA. Award. Anthony V i wire Musana J. 7.03.2025**

### **Grounds 2, 3 and 4**

- **[28]** The LO is faulted for failing to evaluate evidence of entitlement to salary at grade 12, failing to evaluate evidence of a non-existent board resolution compressing salary grades 13 and 12 to grade 10 and in not holding that the application of salary grade 10 in the computation of the Appellant's terminal benefits was unlawful and retrospective in nature. - **[29]** In our view, the appeal challenges the decision of the LO in finding the computation of terminal benefits at grade 10 was correct. We think that ^a resolution of the common question whether the LO was justified in holding that the Appellant was not entitled to computation of his benefits at salary Grade 12 would also resolve the questions raised in grounds 5 and 6 of the appeal, which relate to discrimination, as we shall demonstrate later in this award. - **[30]** By what means, on the evidence, did the LO arrive at this conclusion? First, the Appellant's employment history, as the commonalities indicate, is that the Respondent employed the Appellant as a Revenue Assistant on the 10lh of August 1993. His starting salary was CAA Salary Scale G1, which is UGX 360,000/= (shillings three hundred sixty thousand) to UGX 504,000/= (shillings five hundred four thousand) annually. He was also entitled to a housing allowance of UGX 50,000/= (shillings fifty thousand), transport reimbursement of UGX 20,000/=(shillings twenty thousand) and meal reimbursement of UGX 30,000/= (shillings thirty thousand). He accepted this appointment on these terms. On the 27th of February 1996, he was confirmed in the Respondent's service as Economics and Planning Assistant with effect from the 1st of September 1994. The Respondent carried out a restructuring process, and in January 2005, Lorimark, a human resources consulting firm, issued a report by which the position of Strategic Planning Officer was proposed at Grade 12. The Respondent received the report on the 20th of January 2006. By letter dated the 7th of May 2007, the Respondent adopted the report and placed its staff in the revised structure, which allowed the Appellant to be placed as Strategic Planning Officer in Grade 12. His earnings were UGX 2,540,311/= (shillings two million five hundred forty thousand three hundred eleven) in pay Grade 12, which ranged from UGX 2,452,707/= (shillings two million four hundred fifty two thousand seven hundred seven) to UGX 3,679,156/= (shillings three million six hundred seventy nine thousand one hundred fifty six). A job description was also provided. On pages 74 to 77 of the Record of Appeal (ROA), the Implementation of the New Revised Structure listed the Appellant at item 62 as Strategic Planning Assistant with ^a salary of UGX 2,452,707/= (shillings two million four hundred fifty two thousand seven hundred seven). - [31] On the 20th of February 2014, there was a salary increment negotiated between the Respondent's Management and the Union by which the Appellant's salary was adjusted from UGX 4,045,694/= (shillings four million forty five thousand six hundred ninety four) to UGX 4,460,164/= (shillings four million four hundred sixty thousand one hundred sixty four) at CAA Salary Scale SGL 12b Notch 3. This was on page 286 ROA. - [32] Minutes 6.0 of the 135th meeting of the Respondents Board held on the 13th of November 2015 approved a Job Evaluation, Grading and Notching Consultancy (Page 99 ROA). On page 142 ROA, a grading structure indicates that grades 12 and 13 had been compressed to Grade 10. By letter dated 5th January 2017[7](#page-7-0), the Respondent advised the Appellant of the approval of a consultancy report and a revised salary structure with a re-notching exercise. The Appellant was placed in SG10, notch A4 as Strategic Planning Officer Monitoring and Evaluation Office

<span id="page-7-0"></span>**⁷ ^A copy of this letter is at page ¹⁵⁷ ROA. <—------- \**

with a salary of UGX 4,805,537/= (shillings four million eight hundred five thousand five hundred thirty seven). His payroll summary for the period between July 2016 and July 2017[8](#page-8-0) consistent with his payslip for June 2017, which shows him in Grade SG10. This corresponded with the adopted salary structure on pages 140 and 146 ROA, which placed the Appellant at SGL 10 Band Sector a Notch 4.

- [33] It is this placement of January 2017 that the Appellant takes issue with. In the record of appeal, four payroll summaries were adduced for July 2013 until July 2017. In that period, the Appellant's salary was adjusted from UGX 4,054,694/= (shillings four million fifty four thousand six hundred ninety four) in July 2013 to UGX 4,805,537/= (shillings four million eight hundred five thousand five hundred thirty seven) in July 2017[9](#page-8-1). The Appellant contends that this placement was illegal and unlawful. The Respondent suggests that it was within its mandate. The LO agreed with the Respondent. In our view, these adjustments did not fluctuate as Mr. Wanyama would have this Court believe. The pattern showed a consistent and gradual rise in the Appellant's salary. That curve does not, by any stretch, mean fluctuating. - [34] In our view, the question for determination relates to a salary restructuring process. The first of the restructurings, which we shall call Lorimark, is not contested. The second, which we shall call Java for convenience, carries the bones of contention. The Appellant complains that the evidence does not show that it was carried out. He also challenges its legality and lawfulness and asserts its retrospective application to be unlawful. - [35] To begin with, what is restructuring? The EA does not help define restructuring, but according to Black's Law Dictionary,[10](#page-8-2) it is the practice or an instance of changing how a government, business entity or system is organized. In labour and employment law practice, Rutinwa et al in "Employment and Labour Law Relations in Tanzania"¹¹ observes;

*"Structural needs arise from a restructuring of the business as ^a result of a number of business-related causes such as the merger of business, a change in the nature of the business, more effective ways of working, ^a transfer of the business or part of the business"*

- [36] Indeed, Section 80 EA admits restructuring as grounds for termination. A broad range of judicial decisions conscript restructuring to termination. But the present case is not about termination. It is about a restructure that affected the Appellant's salary. - [37] From these references, workplace restructuring, in human resource management parlance, is when a company decides to make changes that often affect their employees based on the current external and internal factors. These changes can include hiring more employees or terminating current employees, changing work duties, merging work duties, downsizing, merging with another company, etc. Each of these changes directly impacts employees and their contracts. Restructuring in an Organisation could mean downsizing, rightsizing, centre sizing, rationalization or job grading, which looks at the organization, job specifications, and pay policy or scales. - <span id="page-8-0"></span>**⁸ Page 287 ROA**

<span id="page-8-2"></span>**1011\* Edition by Byran Garner at Page 1572**

<span id="page-8-1"></span>**⁹ These payrolls are at pages 287 to 290 ROA**

**^&quot; Edited by B. Rutinwa, E. Kalula and LAckson Law Africa 2014 at page 128.** - **[38]** In the present context, the Lorimark restructuring enhanced the Appellant's salary, which was carried out in 2005. The Appellant challenges the Java restructure. He protested by letters dated 28th January 2016 and 14th November 2016, which was well within his rights. Therefore, he acknowledges the Java restructure. But was the Appellant degraded as he alleges? We think not. He remained a Strategic Planning Officer with the same job description, duties and enhanced salary, albeit in grade 10 and not 12. In our view, the Extract of the Board Resolution for the 135th meeting of the Respondents Board meeting of the 13th of November 2015 is not impeachable. It is an extract of the board's decision; Minute 6.0 approved the Java Job Evaluation, Grading and Notching Consultancy recommendations. The Appellant's evidence does not show how the Board meeting or the salary reviews were illegal or irregular. - **[39]** We think the LO properly applied her mind to the facts of the case and the evidence before her because she found the Appellant's salary undisturbed. It was enhanced. In the LO's words, it would have been different if the Appellant had been promoted and paid far less than Mubiru and Okot. This is why the Appellant did not challenge Lorimark or the salary increments to his salary before Java. And there was no evidence that his consent was sought for the increments under Lorimark and the other 10% salary increments. In her award, the LO found that the restructuring was an exercise of managerial prerogative. We agree with this proposition because there must be a need to balance protection for workers with the need for companies to be free to conduct their business. On the evidence before us, we are unable to fault the LO for coming to this conclusion. Therefore, regarding the complaint regarding the restructuring exercise that led to a placement of the Appellant in Scale 10, grounds 2 and 3 of the appeal would fail. - **[40]** The other challenge was the retrospective application of the increments in Java. There was much debate on the meaning and application of *Ssozi* and *Nankyewa* by both the Appellant and Respondent. In *Ssozi,* the Plaintiff was terminated and given two months' notice under a new Human Resource Manual while her employment contract had provided for three months. For this reason, Musoke J. *(as she then was)* held that a unilateral variation of a contract term without consent was unlawful. While the Appellant believed that the dicta of Musoke J. supported the view that his case was on all fours, Musoke J. found the contract terms more favourable than those now introduced. This was the basis of the finding favouring the employee in that case. We are of the view that the Industrial Court in *Nankyewa* applied a similar thinking. In that case, the Industrial Court considered the Appellant, Makerere University's prerogative to classify employees in segments on ^a salary scale but not for ^a retrospective application to rights accrued before the implementation of segmentation. In other words, any segmentation which affected already accrued rights or arrangements earned before the implementation of the changes was unfair. And that is not the case in the matter before us. - **[41]** We take further persuasive guidance on the point from *Northern Province Development Corp v CCMA and Others[12](#page-9-0).* Here, the Labour Court of South Africa was dealing with a finding that failure to subject all grades to an independent consultant or alternatively failure to accept the grades of the internal job evaluation committee, and only subject them in the Human Resource Officers thereto amounts to inconsistency on behalf of the company amounted to an unfair labour practice. Landman J. held that by no stretch of imagination can the complaint that the individual respondents had regarding their grading fall within the concept of residual unfair labour practice. Indeed, it amounts to a matter of mutual interest. A.

<span id="page-9-0"></span>**¹² [2001] ZALC 113**

**LOA 017 of 2O21. Wanyoto C. D v UCAA. Award. Anthony (wire Musana J. 7.032025**

- **[42]** We do not agree that the Appellant had earned any salary arrears under scale 12 at its implementation because he was not in scale 12. His placement on scale 10 under Java was done with the exercise of a managerial prerogative of the Respondent. On page 13 of the award in *Nankyewa,* the Industrial Court did not think that an employer was precluded from categorizing staff according to qualification and specific roles played and subsequently increasing their salaries accordingly. Regarding salary arrears, the Industrial Court believed that arrears would be computed on Scale M6 and not M6.1 and M6.2. The Court was of the view that the other adjustments would have prospective effect but that salary arrears would be computed at the old scale. It is these dicta that the LO applied after evaluating the evidence before her, and we think that her conclusion that *Nankyewa* did not apply to the instant facts because there was no reduction but an increment from UGX 4,460,164/= (shillings four million four hundred sixty thousand one hundred sixty four) to UGX 4,805,537/= (shillings four million eight hundred five thousand five hundred thirty seven) is correct. - **[43]** What is expressly prohibited under Section 44EA is for an employer to make deductions off an employee's salary. Section 45EA permits deductions for tax or rates imposed by law, ^a deduction with employee consent for pension or provident fund, rent or reasonable charges and union dues. No other deductions are permitted. However, under Section 26(2) EA, the Act does not prohibit the application between parties of terms and conditions of service which are more favourable to the employee than those contained in the Act. In our view, variations of an employment contract which positively affect an employee would not be unfair or illegal. - [44] Other authorities of decided cases illustrate the point. In *Nanding & 6 Others vAttorney General* n Ssekaana J. (as he then was) quashed ^a Ministerial decision to revise the applicants' salaries downward, arguing that it violated a presidential directive (executive order) issued in 2010 to align their pay with counterparts in the Directorate of Public Prosecutions (DPP). The Court held that the Ministerial actions were illegal, irrational, ultra vires, and violated constitutional protections under Article 158(1). An order of mandamus was issued, directing the Attorney General to restore the salaries and pay all arrears owed. In the Kenyan case of *Simon Ndicu v Karatina University [13](#page-10-0)⁴* AN Makau J. observed that new contract terms could not be applied retrospectively to the employee's detriment without his consent; retrospective salary reduction has no place in labour law. From these two cases and as emphasized in *Ssozi,* an employer cannot take away accrued employee rights. - **[45]** Thus, retrospective salary enhancement becomes an acceptable legal proposition. In Labour Law: Text and Materials[15](#page-10-1) the retrospective enhancement of earnings is a legal remedy where an employee receives additional wages or benefits for ^a past period due to a court ruling, statutory adjustment, or collective agreement, often arising from wrongful dismissal, wage disputes, or misclassification. Smith & Wood's Employment Law[16](#page-10-2) suggests that the principle of retrospective wage adjustment applies where an employer is required to compensate an employee for past earnings, typically due to an unlawful dismissal, non-payment of agreed wages, or statutory changes affecting employment terms. Case law is also helpful. In *Murtagh v Corporation of the Roman Catholic Diocese of Toowoomba[17](#page-10-3)* the Federal Court of Australia was considering an appeal by two school employees against a dismissal of an application for back pay for increases to their pay and entitlements under an enterprise agreement

**IDA 017 of 2021. Wanyoto C. D v UCAA. Award. Anthony Wblwire Musana J. 7.03.2025**

**¹³ [20241 UGHCCD 127**

<span id="page-10-0"></span>**¹⁴ [2021] KEELRC 1863 (KIR)**

<span id="page-10-1"></span>**¹⁵ Labour Law: Text and Materials by Hugh Collins, KD Ewing and Aileen McColgan Hart Publishing 2001**

<span id="page-10-2"></span>**¹⁶ Smith & Wood's Employment Law 14th Edition by Ian Smith, Aaron Baker and Owen Warnock Oxford University Press**

<span id="page-10-3"></span>**¹⁷ [2023] FCAFC 17**

## Page 12 of 17

commencing during their employment but coming into effect after their respective resignations. In that case, the Appellants were employees of the Respondent in July 2019. They each resigned in December 2019. However, on 25th November 2020, the Respondent had concluded agreements that provided for back pay or increases in the employee's remuneration effective the ¹st day of July 2019. The agreements provided an obligation to pay back pay to "applicable employees" at the first pay period after the enterprise agreements came into effect. The Court found that the appellants fell within the class of "applicable employees". In allowing the appeal, it was found that an agreement that provided for an increase in pay for an employee who had ceased to be in employment on the date on which the agreement came into force but was entitled to pay from a given cutoff date did not create ^a retrospective contravention. The Appellants in that case were granted back pay for the period 1st July 2019 to December 2019 when they resigned for an agreement that came into force in December 2020. The Federal Court was emphatic that it was a matter of construction or interpretation of the agreement.

- **[46]** This case expounds on accrued rights, which, in our view, is the essence of the principle enshrined in *Nankyewa, Nanding* and *Ssozi.* What has accrued cannot be taken away, but at the same time, *Murtagh* sidesteps the restriction on retrospective reduction of wages by validating retrospective enhancement of salary. In other words, an employer can improve the benefits retrospectively. We think that to be the case in the matter before us. The Respondent granted all its employees a salary increase through the Java restructuring. In the Appellant's case, the increment was from UGX 4,460,164/= (four million four hundred sixty thousand one hundred sixty four) to UGX 4,805,537/= (shillings four million eight hundred five thousand five hundred thirty seven). Additionally, the Appellant had been a beneficiary of several retrospective enhancements. On 20th February 2014, the Appellant was awarded a 10% salary increment with effect from 1st July 2013. The adjustment took his salary from UGX 4,054,694/=(four million fifty-four thousand six hundred ninety-four) to UGX 4,460,164/= (four million four hundred sixty thousand one hundred sixty-four) in grade SG12b Notch 3. He was paid his salary arrears of UGX 2,838,286/= (shillings two million eight hundred thirty-eight thousand two hundred eightysix) and his new salary in February 2014. In December 2015, his salary was enhanced by a further UGX 336,038/= (shillings three hundred thirty-six thousand thirty-eight), effective from 1st July 2014. According to the ROA, Mubiru, Okot, Bukenya, Jacquline Kiyingi, Milton Muhenda, and Opolot Micheal Thomas received retrospective salary increments in 2007 albeit in different salary scales. The International Labour Organisation(ILO) recognises retrospective enhancement of earnings. In two reports[18](#page-11-0) these earnings are considered a remedial measure ensuring employees receive compensation for past financial losses, including wage increments, unpaid overtime, or benefits, based on legal or contractual obligations. - [47] In sum, we would conclude that the restructuring exercise in the Respondent Authority was organisation-wide. Lorimark covered the entire structure of the Respondent. Java's notching exercise covered Grade ¹ to Exec 1A. It did not point to a single officer. Indeed, the Appellant was not the sole target of an enterprise-wide restructuring exercise, so we may find that the Respondent acted unfairly. To all intents and purposes, we find that the restructuring was blind and, in that way, fair. The result of this finding is that we cannot fault the LO for finding as she did. She evaluated the evidence and did not arrive at a wrong conclusion that the Appellant was not entitled to terminal benefits at grade 12, or that there was no board resolution compressing grades 13 and 12 to grade 10 or that the application of grade 10 was unlawful and retrospective in nature. In light of this, grounds 2, 3 and 4 of the appeal must fail and are dismissed.

<span id="page-11-0"></span>**¹⁸ Report 111(1 B)-2003- CHAPTER l-EN DOC and The International Labour Conference, 95th Session, 2Q06 Reportf^e^ rt V(1)**

## **Grounds 5 and 6**

- [48] In our treatment of Grounds 2, 3, and 4, we indicated that the disposal of those grounds would affect the resolution of grounds 5 and 6. We have found in our disposal at paragraph [47] above that the LO could not be faulted for finding that the Appellant was correctly placed in Salary Grade 10. The questions that grounds 5 and 6 of the appeal raise is whether there was an error or discrimination against the Appellant when his colleagues Okot, Mubiru and Bukenya were given new positions. Because the restructuring did not have the Appellant in its crosshairs as a target, we think the Appellant's *onus probandi* for discrimination is necessarily elevated. - **[49]** Discrimination, as pointed out by both parties is under Article 21 of the Constitution of the Republic of Uganda 1995, which provides that all persons are equal before and under the law in all spheres of political, economic, social, and cultural life and shall not be discriminated against on grounds of sex, race, colour and ethnic origin inter alia. To discriminate means to give different treatment to different persons attributable mainly to their respective descriptions. Under Section 5EA, discrimination in employment is unlawful. It includes any distinction, exclusion or preference made based on race, colour, sex, religion, political opinion, national extraction, social origin, HIV status or disability. These definitions are generally consistent with the Wharton definition provided by Mr. Wanyama. - **[50]** The International Labour Organisation under the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) defines discrimination in employment in terms similar to the 1995 Constitution.[19](#page-12-0) There has also been some jurisprudence on the point. In *Aporo v Mercy Corps Uganda[20](#page-12-1) we* cited *Lwabayi Mudiba and Anor v Attorney General [21](#page-12-2)* where the Constitutional Court cited the case of *Carolyne Turyatemba & 4 Orsv Attorney General & Anor[22](#page-12-3)* where it was observed that to discriminate for the purpose of Article 21 is to give different treatment to different persons attributable only or mainly to their respective description by sex, race, colour, ethnic origin, tribe, creed or birth, religion, social or economic standing, political opinion or disability. The Court further observes that the prohibition against discriminatory conduct is based upon the universal principle of equality before the law. Humanity as a family is characterized by the attribute of oneness in dignity and worthiness as human beings. Therefore, there ought not to be one group of human beings entitled to privileged treatment regarding the enjoyment of basic rights and freedoms over others because of perceived superiority. Likewise, no group of human beings should be taken as inferior and not entitled and treated with hostility regarding the enjoyment of the fullness of fundamental rights and freedoms. - **[51]** In *Mudiba,* Kasule JCC also observed that the petitioner never addressed the constitutional court on whether the alleged discriminative salary payments in the Uganda Government institutions were based on any of the attributes as set out in Article 21 of the Constitution of the Republic of Uganda. - **[52]** Thus, in *Aporo,* we concluded that a Claimant seeking to prove discrimination must demonstrate unequal treatment based on an attribute under Article 21 of the Constitution and Section 5 EA. The attributes are race, sex, colour, religion, political opinion, national extraction, social origin,

**LOA 017 of 2021. Wanyoto C. D v UCAA. Award. Anthony W i wire Musana J. 7.032025**

<span id="page-12-0"></span>**¹⁹ It reads** *"Anydistinction, exclusion orpreference made based on race, colour, sex, religion, politicalopinion, national extraction orsocial origiy, which has the effect ofnullifying orimpairing equality ofopportunity or treatment in employment or occupation."*

<span id="page-12-1"></span>**²⁰ [20241UGIC 23**

<span id="page-12-2"></span>**²¹ [2021] UGCC 35**

<span id="page-12-3"></span>**²² [20111 UGCA6**

HIV status or disability.[23](#page-13-0) 24The Constitutional Court of South Africa in *Mbana v Shepstone and WyHe2A* which case we cited in *Aporo,* helped describe the three steps of an unfair discrimination inquiry. They determine first whether there is a differentiation, then establish whether it amounts to discrimination, and finally prove whether it is unfair.

- **[53]** In the present context, the Appellant's evidence in his witness statement placed before the LO in paragraphs 8 and 9 is that he was placed on a salary scale 10 applicable to new entrants and junior staff. He said that his fellow employees who joined the Respondent eight years after him and with whom he was in the same grade were placed in grade 12. He attached Mubiru and Okot's payslips. He said that was discrimination of the highest order for which he had sought general damages of UGX 500,000,000/=(shillings five hundred million). - **[54]** Was this differentiation and discrimination on the evidence adduced by the Appellant? By his witness statement, the Appellant indicates a differentiation between him, Okot and Mubiru. He suggests that they were placed in Grade 12 while he was placed in Grade 10. That they joined eight years after him. The Constitutional Court of Uganda has dealt with the question of differentiation. In *Hon. Justice (RTD) Dr. Yorokamu Bamwine v Attorney General[25](#page-13-1)* the Petitioner who had served as Principal Judge brought a petition alleging that sections 22 and 25 and Schedules 2 and 5 of the Administration of the Judiciary Act,2020 (AJA) were inconsistent with and contravene Articles 21 (f ), 2 (1) 40 (I) (b) and 128 (7) of the Constitution for being discriminatory. The Petitioner's evidence was that as administrative head of the judiciary, he was entitled to terminal benefits in like manner as a retired Chief Justice and Deputy Chief Justice which the AJA provided for. He contended that AJA discriminated against the Principal Judge by granting the Chief Justice and Deputy Chief Justice 100% of their monthly emoluments upon retirement. In comparison, the Principal Judge received only 80%. He argued that this disparity was unconstitutional and did not reflect the judiciary's hierarchy. The Attorney General responded that Dr. Bamwine had retired before the Act's commencement and had received all his retirement benefits, including a gratuity of approximately UGX 1.247 billion, ^a monthly pension of UGX 13.8 million, a housing allowance of UGX 300 million, security, and a chauffeur-driven car. In the lead judgment, Madrama JCC (as he then was), the Constitutional Court unanimously dismissed the petition, stating that the issues raised pertained to policy matters within Parliament's purview, not constitutional interpretation. The court noted that different laws provide varying levels of remuneration and benefits, and it is Parliament's role to ensure these are commensurate with the rank and status of public officers. - **[55]** Similarly, in *Madrama v Attorney General[26](#page-13-2)* the Supreme Court of Uganda addressed the constitutionality of Section 10 of the Pensions Act, which stipulates that public officers must serve until the age of 45 to qualify for pension benefits. The appellant, who had resigned from public service before reaching this age, contended that this provision was discriminatory and violated his constitutional rights, including the right to equality and freedom from discrimination under Article 21 of the Constitution. The Supreme Court, in a majority decision, upheld the constitutionality of Section 10 of the Pensions Act. The Court reasoned that while Article 21

<span id="page-13-1"></span>**²⁴ 2015(6) BCLR 693** ²⁵ [2022] UGCC3

<span id="page-13-2"></span>

**²⁶ [2019] UGSC ¹**

**LDA 017 of 2021. Wanyoto C. D v UCAA. Award. Anthony [wire Musana J. 7.03.2025**

<span id="page-13-0"></span>**²³ See also "Discrimination at the Workplace: Understanding, Addressing, And Overcoming Challenges"[23](#page-13-0) a paper presented by the Honourable Lady Justice Linda Lillian Tumusiime Mugisha at CMJA Wales, 2023 where she observes that the Court inquiry is concerned with the impact on the complainant and not the intention and authority of the person who is said to be engaging in discriminatory conduct. Her Lordship cited** *Moore* **vs** *British Columbia (Education)* **2012 SCC 61 where the Canadian Supreme Court held that in discrimination case, a complainant must demonstrate that s/he has a protected characteristic; that s/he has experienced an adverse impact regarding employment; and that the protected characteristic was a factor in the adverse impact**

prohibits discrimination on specific grounds such as sex, race, and religion, it does not explicitly mention age as a prohibited ground. Therefore, the differential treatment based on age in the Pensions Act did not constitute unconstitutional discrimination. The Court found that the principle applies to individuals currently in service and performing the same work on equal pay for equal work. Since the appellant had resigned, he was no longer entitled to benefits associated with active service.

[56] In the present context, while the Appellant suggested he had been differentiated against, he did not show that he had been discriminated against on any protected attributes in Article 21 and Section 5EA. He did not show that he was treated differently on account of race, sex, colour, religion, political opinion, national extraction, social origin, HIV status or disability. It is quite true that the Appellant shared a scale and grade with Mubiru and Okot, but he did not show that he was differentiated against on account of any protected attribute. In his resignation letter, he resigned from his employment and did not indicate that he had resigned because of differentiation, discrimination or an unfair placement in Grade 10. His Internal Memo dated the 11th of May 2017 stated that he wished to take early retirement on the 30th of June 2017 due to declining health status following a head operation that he underwent in February 2017. He expressed gratitude for having had the opportunity to work with the Respondent and felt blessed beyond measure to have been part of such a great team. There was no mention of any unfair, illegal or indeed unreasonable conduct on the part of the Respondent that might give rise to an action for constructive dismissal.²⁷ It was not the salary degradation at the forefront of his early retirement. Therefore, on the authorities of *Bamwine* and *Madrama* above, on the evidence before us, we could not conclude that the Appellant had placed any grounds for discrimination under the protected attributes in Section 5(3)EA before the labour officer. Under Section 5(4)EA, it is provided that any distinction, exclusion or preference in respect of a particular job based on the inherent requirements of that particular job shall not be deemed to be discrimination. In the present case, Mubiru and Okot were in the Information Technology Department²⁸ as Network Administrator and Database Administrator, respectively. The Appellant was in the Strategic Planning Department as a Strategic Planning Officer. In our view, in considering the evidence before her, the LO referred to the witness statement and considered the effect of restructuring on the Appellant. This is contained on pages 3, 4 and 5 of the award. In evaluating the evidence, the LO did not encounter any error in promoting Mubiru and Okot. In her words, there was no foul play.

- **[57]** Therefore, we do not consider that the criticism of the LO officer to be well grounded on the question of discrimination because the Appellant, in the evidence before the LO, did not show that he was treated differently from Okot and Mubiru on account of any of the protected attributes in Section 5EA. He did not show that he was treated unequally or that Mubiru and Okot were retained in grade 12 because of an attribute that the Appellant possessed. In other words, the discrimination factors were not shown for his treatment to qualify as such. We are unable to fault the LO. We are fortified in taking this view by the persuasive South African case of *Louw v Golden Arrow Bus Services (Pty) Ltd²⁹* Landman J. held that discrimination on ^a particular ground means that the ground is the reason for the disparate treatment complained of. - **[58]** The effect of our conclusion on the absence of elements of discrimination or error in the placement of Mubiru and Okot is that grounds 5 and 6 of the appeal also fail

**²⁸ See page 88 ROA ²⁹ (2000)21 ILJ 188(LC)**

**²⁷ Under Section 64(1 )(c) EA, an employee who resigns for unreasonable conduct of the employer would be entitled to sus**

**LOA 017 of 20Zl. Wanyoto C. D v UCAA. Award. 7.03.2025**

# **Ground 7**

- **[59]** This ground related to remedies starting with the recomputation of the Appellant's terminal benefits. We think that on the finding that the LO could not be faulted on grounds 2 to 6 of the appeal as she properly evaluated the evidence before her, it would follow that we would respectfully agree with her disinclination to award the Appellant any remedies. Because the terminal benefits were computed correctly, there was no basis upon which he would be entitled to a recomputation of his terminal benefits. - **[60]** For the reason above, we would conclude that the claims for general and exemplary damages, interest and costs of the claim would have no foundation in the matter before the LO for jurisdictional reasons and before us, in this appeal, because we agree with the LO's findings and conclusions.

*I*

- **[61]** Accordingly, the appeal fails and is dismissed. - **[62]** We are not inclined to grant the Respondent costs because the dicta in employment disputes does not impose costs where they whittle down the compensation package that the employee seeks (See *Uganda Revenue Authority v Siraje Hassan Kajura).³⁰*

It is so ordered.

**Signed, sealed and delivered at Kampala this day of March 2025** Anthony Wab Musana,

# **Judge, Industrial Court of Uganda**

### **THE PANELISTS AGREE:**

- 1. Hon. Jimmy Musimbi, - 2. Hon. Emmanuel Bigirimana & - 3. Hon. Can Amos Lapenga.

**³⁰ SCCA No. of 2015 Per Prof Tibatemwa-Ekirikubinza JSC**

### **7th March 2025**

**9:53 a.m.**

#### **Appearances**

1. For the Appellant:

Mr. Anthony Wanyama Appellant in Court.

2. Respondent absent.

Court Clerk:

Mr. Samuel Mukiza.

**Mr. Wanyama:** Matter is for the award, and we are ready to receive it.