THE REPUBLIC OF UGANDA

THE INDUSTRIAL COURT OF UGANDA HOLDEN AT KAMPALA

LABOUR DISPUTE CLAIM NO. 029 OF 2014

(ARISING FROM HCT-CS NO. 128 OF 2012)

BETWEEN

BUSUULA SAMUEL........................... CLAIMANT

AND

ATTORNEY GENERAL...................................................  RESPONDENT

BEFORE

1. The Hon. Chief Judge, Asaph  Ruhinda  Ntengye
2. The Hon. Judge, Linda Lillian Tumusiime Mugisha

Panelists

1. Mr. Ebyau Fidel
2. Mr. Mavunwa Edson Han
3. Ms. Julian  Nyachwo

AWARD

This is an employment /labour dispute arising from a relationship between the claimant and the respondent.  By memorandum of claim filed in this court on 14/11/2014, the claimant claimed that the respondent wrongfully withdrew his appointment in contravention of the public service Act, Public service standing  orders and constitutional guarantees for civil servants prescribed under Article 28, 42, and 173 of the Constitution and that as a result he was wrongfully terminated.

By a memorandum in reply filed in this court on 15/12/2014 the respondent claimed that the claimant’s appointment was lawfully withdrawn in accordance with the provisions of the contract of Employment and conditions of service.

BRIEF FACTS

The claimant was employed as examiner of accounts with the office of the Auditor General on 22/05/1995at a salary scale of U6 at 564,250/=.  In 2008 the salaries of examiners of accounts were increased with the enactment of a new law governing the Auditor General's office.

Following an advert of the post of Internal Auditor, the claimant applied was successful and was offered appointment as Internal Auditor at a salary scale of U4 and posted to Masaka referral Hospital as Internal Auditor.  Because the salary in the Auditor General’s Office was higher than the salary given to the claimant as Internal Auditor, there was communication between the claimant, Auditor General, Accountant General, and Public Service Commission through a number of letters concerning the salary of the claimant.  All this communication culminated in a withdrawal of the posting of the claimant to Masaka Hospital by   Public Service Commission Min. No. 14.1 of 2009.

ISSUES AGREED

1.  Whether there was a valid contract between the parties
2. Whether the claimant’s appointment letter was validly withdrawn
3. Whether there are any remedies available to the parties.

SUMMARY EVIDENCE

The claimant adduced evidence from only himself and the respondent adduced evidence from two witnesses.  The claimant in his written sworn statement informed court that having been employed as Examiner of accounts in the Auditor General’s office, he subsequently applied for a post  of Internal auditor and after being successful he received an appointment  letter which he accepted formally on 28^th February 2009. 

Convinced that he was entitled to a salary on a “personal to holder basis” and yet he was appointed on a lesser salary than he was receiving while in the Auditor General’s office, he sought clarification on 10/3/2009 about his salary to which he never got a reply but only received a letter withdrawing his appointment by Public service commission without being given opportunity to be heard.

In his evidence, the claimant told court also that despite his reporting to work prior to withdrawing of his appointment, he was not paid any salary.

According to his evidence, it was because of his refusal to conceal evidence of certain anomalies regarding certain payments including those of his superior that he was victimized.

The first respondent’s witness was one Kagwa Dennis.  He informed court that after successfully sitting for interviews, the claimant  was offered and he formerly accepted the post of Internal Auditor but that  the claimant  later on presented a counter offer of “a salary personal to holder” (exhibit “DEXS”) irrespective  of which he was posted to Masaka.  He told court that the “personal to holder” salary is negotiated at the time of the interview with Public Service Commission and if accepted a minute is recorded and sent to the receiving entity (department or Ministry).  According to him the salary of the claimant was withheld because he made an outrageous claim of 17,324,381 which made the PSST and the Accountant General doubt his entitlements.

According to him in accordance with the advice of Public Service Commission and given that the claimant had made a counter offer showing dissatisfaction with the terms and conditions, his appointment was withdrawn.

The second and last witness for the respondent was one Rose Kafeero who at the time was working as Deputy Secretary to the Public Service Commission.  She testified in her written sworn statement that the claimant wrote to the Commission requesting that he should be allowed to continue with his previous emplacement under the Auditor General since the Accountant General had failed to adjust his salary.  His case was presented to the commission on 7/10/2009 which observed that before withdrawal of the claimant’s appointment his status as Examiner of accounts at Auditor General’s office ought to be established, upon which the Auditor General declined to re absorb the claimant. 

Thereafter Public Service Commission approached the accountant General on the possibility of reconsidering the recommendation for withdrawal of appointment but the Accountant General declined.  On 23/4/2010, the matter once again appeared before the Public Service Commission which withdrew the offer of appointment.

When the claimant appealed against this decision, the commission asked Accountant General for comments and the Accountant General advised that the appeal be rejected and it was so rejected.

SUBMISSIONS

On the first issue counsel for the claimant contended that the contract between the parties was sealed when the claimant accepted the offer of appointment by letter dated 28/2/2009 “EXHB PEXI2” and by reporting for duty when he went for a 3 weeks orientation - “EXHB PEXI4”.

Counsel argued that the letter dated 10^th March 2009 was not a counter offer since it was received on 8/5/2009 long after formal acceptance of the offer and after expiry of the offer.  He argued that the letter was merely seeking clarification of the salary of the clamant and it did not in law amount to a counter offer.

On the second issue counsel argued that the withdrawal of appointment was unlawful because it was contrary to Uganda Public Service Orders, the claimant was not given a chance to be heard and he was victimized.  Counsel relied on section A-N of Public Service standing Orders and the authorities of Eng. Pascal Galyero vs Civil Aviation Authority, Civil Appeal 60/2006 (CA).  Batuli George William Vs Nakasongola district Local Government HCCS 372/2007 and Ananias Tumukunde Vs A.G Constitutional Petition No. 04/2009. He submitted that the key Public servants including the Accountant General were not happy with the Claimant after he had failed to conceal their involvement in failure to account for public funds and therefore he was victimized.

Counsel for the respondent on the first issue argued that by letter dated 10^th March 2009 the claimant manifestly suggested different terms from the offer letter and therefore there was no valid acceptance.  Relying on section 7(1) of the contract Act, he argued that an effective offer must be absolute and equivocal and by varying the terms of the offer, the claimant had given a counter offer, thus invalidating the original offer.

He argued that the claimant set his terms which were not acceptable to the respondent.  He contended that the omission by the claimant in his acceptance letter “DEX6” to mention the Public Service Act and regulations made thereunder, the standing orders and Administrative instructions was deliberate as evidenced in his conduct when he authored another letter dated 10/3/2009 – “DEX5” objecting the terms in the appointment letter.

Counsel went on to point out circumstances under which a person may be given appointment on “a personal to holder” salary and argued that since the claimant did not fall under this category of Civil servants, upon failing to accept the offer given to him unconditionally, the Public service withdrew the offer since the claimant had rejected it by letter “DEX5”.

On the second issue, counsel argued strongly that the withdrawal of appointment was done in accordance with the Uganda public service standing orders.  He relied on section A-C paragraph 12 of the Public service standing orders of 2010.

Counsel contended that the claimant did not qualify as a Public Officer so as to benefit under Article 173 of the constitution and the decision in ANGWEE KALANGA Vs A.G HCCS No. 119/2001 since he voluntarily rejected the offer of appointment through a counter offer which was rejected and therefore his appointment was lawfully withdrawn.

Counsel argued that the claimant was given a chance to be heard through the exchanged letters on the record as well as when the Chairperson of the Public service interacted with him. 

According to counsel, the claimant was not victimized and allegations against officers of Government were baseless as he never reported to rightful authorities like the Inspectorate of Government.

EVALUATION OF EVIDENCE AND DECISION OF COURT

We now consider the question whether there was a valid contract between the parties.

Both counsel agree as to the elements that constitute a valid contract i.e. offer, acceptance of the offer, existence of a lawful consideration, capacity for the parties to contract, existence of an intention to create legal relations between the parties, free consent of the parties and a lawful object.

From the evidence and pleadings it is clear that the contention is about the elements of OFFER, ACCEPTANCE and CONSIDERATION which we shall concentrate on.

The offer of the job of Internal auditor to the claimant was constituted in a letter of appointment which stated:

“…….you be offered appointment as Internal Auditor, scale U4 with effect from the date of assumption of duty…… the salary attached to the post ranges from Ugx. 6,816,430/= to Ugx. 8,064,245 per annum in U4 upper scale……….  The appointment is subject to the constitution of the Republic of Uganda, the Public Service Act, Chapter 288 (Laws of Uganda) and regulations made hereunder, the Pensions act, …..the Uganda Government Standing Orders and Administrative Instruction from time to time…..  if you are prepared to accept this offer of appointment on the terms stated, please inform me in writing”.

The letter was signed by one Bwoch for the Permanent Secretary.  One Duncan  Bigirwa had earlier on written to the claimant on behalf of the Public Service Commission informing  him of his successful appointment and requiring him to get the  appointment letter from the Secretary to the treasury and the letter from Public Service provided…

“The offer of appointment will lapse if you fail to report for duty within 30 days from the date of this letter”

The claimant on 28/2/2009 wrote to the Secretary to the treasury thus:

"RE:  ACCEPTANCE OF APPOINTMENT

I humbly appreciate the offer of appointment and hereby accept as provided for in the Constitution of the Republic of Uganda.  I am rushing back to Gulu to ensure that  I handover to my superior to be in position to report within 30 days as required in the earlier appointment by the Secretary, Public Service Commission."

On 10^th March 2009 the claimant once again wrote to the secretary to the treasury thus:

“Re:  ACCEPTANCE OF APPOINTMENT WITH SALARY PERONAL TO HOLDER

Following my appointment after successful interviews with Public Service and subsequent appointment via HRM/70/01/Vol. XVI By Public service commission.

I received an appointment letter from your office referred to TAD 77/112/01.

However paragraph 2 of the letter, is not clear about my salary of Ugx. 1,954,981 per month which I am supposed to retain as provided for in the constitution of the Republic of Uganda.  I wish to clarify to you sir that I applied for the post, got secondment from Auditor General’s office (my previous employer) and released me to your office without any interruption of service.  I will be grateful if this error is corrected before I start accessing my salary”.

Given that the claimant had formally accepted the appointment by letter dated 28/2/2009, the question for this court is :  what was the intention and legal effect of the subsequent letter of the claimant dated 30^th March 2009?

The case for the claimant is that it was merely an inquiry on clarification of his salary since he had already accepted the appointment.

The case for the respondent is that it was a counter offer the effect of which was a rejection of the offer, and a proposal of different terms of the offer of appointment which were rejected.

In our understanding, a counter offer is a Proposal made as a result of an undesirable offer.  Its intention is to revise the initial offer and make it more desirable for the concerned person.  The legal effect of a counter offer is therefore to decline the previous offer and allow negotiation to continue with a hope that a new and acceptable offer is made.

We agree with the submission of the claimant (and the respondent did not show any contrary view) that the offer to the claimant was subject to

1.  Reporting to the Permanent Secretary/Secretary to the Treasury for issuance of an appointment letter.
2. Reporting for duty within 30 days
3. Informing the Permanent Secretary/Secretary to the Treasury in writing about the acceptance of the offer.

In satisfaction of the above elements in the offer, the evidence on the record suggests that on 28/2/2009, the claimant wrote an acceptance of the appointment, having picked the appointment letter from the Permanent Secretary to the Treasury, and informed the Appointing Authority that he was making necessary steps to report within the prescribed 30 days.

Nothing in the submission or evidence of the respondent suggested that the acceptance of the offer was not communicated to the respondent.  Section 4 of the contracts Act provides:

“2. Communication of an acceptance is complete;

1.  As against  the offeror, when it is put in a course  of transmission to him or her so as to be out of the power of the acceptor
2. As against the acceptor, when it comes to the knowledge of the offeror.

Section 5(1) provides:

“An offer may be revoked at any time before the communication of acceptance is complete.

Section 5(2) provides:

"An acceptance may be revoked at any time before the communication of the acceptance is complete".

Section 7 of the contracts Act provides for the acceptance to be absolute and unqualified.

Given the above provisions of the contract act and on perusal of the letter of acceptance dated  28/2/2009, we are satisfied  that indeed the offer of the job of Internal Auditor was accepted by the claimant.  There was nothing in the letter of acceptance to suggest contrary terms so as to be interpreted as a counter offer.  We do not accept the contention of the respondent that the claimants failure to include in his acceptance other legislation apart from the constitution amounted to a rejection of the offer.  The claimant categorically stated in his acceptance  that it was as provided  for in the constitution of the Republic of   Uganda and we all know that any legislation originates from the constitution and if any is inconsistent with the constitution, it is void to the extent of the inconsistency.  The failure to include other legislation did not in any was suggest that the claimant was not  agreeable to the provisions of the said legislation as included in the appointment because he stated:

“I humbly appreciate the offer and appointment  and hereby accept as provided for in the Constitution…..”

It is our opinion therefore that the moment the above  acceptance  was effectively communicated to the  respondent, given that the other elements of a contract were not in contention, the contract between the respondent and the claimant was sealed.  It follows therefore that any subsequent communication between the parties had very little to do, if at all, with the validity of the contract.  The terms of the contract as per the offer could not be changed or altered by any subsequent communication after effective communication of acceptance.

The letter written by the claimant dated 10/3/2009, in our considered view could not be referred to as a counter offer since as already pointed out acceptance of the offer was already effectively communicated to the respondent.  The fact that the said letter  referred to “Acceptance of appointment with salary personal to holder" in our view did not change the fact that a contract as per the terms in the appointment letter had been sealed.  This subsequent letter suggests that the claimant believed that he was entitled to be paid the same salary as he was paid in the previous job with the Auditor general and he believed that he had been seconded to the Accountant General from the Auditor General.  The claimant  believed there was an error in the process of his recruitment regarding his salary. In our considered view the letter had nothing to do with the validity of the contract.

It is therefore our decision that there was a valid contract between the parties and the first issue is in the affirmative.

The second issue is whether the claimant’s appointment was lawfully withdrawn.

In support of his argument that the claimant’s appointment was lawfully withdrawn, counsel for the respondent relied on section A-C paragraph 12 of the public service standing orders of 2010 which provides:

“No appointment of any public officer shall be deemed to be effective until the responsible Permanent Secretary or the responsible officer has made an offer to the officer and he or she has accepted the offer in writing.  It follows therefore until the officer has formerly accepted the offer in writing and reported to his or her posting duty station, where applicable the salary attached to the appointment shall not be paid.

Where the appointment is to a post which is required to be to a post which is required to be gazzeted, gazette notice shall not be published until the officer has finally a accepted the offer and assumed duty”.

According to counsel for the respondent, the fact that the claimant raised a claim of 17,324,381, referred to by one Mr. Dennis Kagwa RW1 as outrageous, the fact that after receipt of this claim advice was bought from Public Service Commission, the fact that the claimant complained that his appointment  was silent about his previous terms of service , and the fact that  the claimant requested the public service commission to allow him to continue with his previous employment yet the previous employment had ceased to exist all contributed to the withdrawal of the claimant’s appointment.      

With due respect to counsel for the respondent, this court was at a loss as to the submissions regarding withdrawal of appointment in accordance with the Public standing Orders.  As can be seen, the above submissions have no relevance to the Standing Orders referred to earlier and  being relied  upon.  The section of the standing orders above relates to justifications of Public Service not to pay an officer who has not  formally accepted  the appointment.  We have already held that the appointment was formerly accepted and so we find the submissions of counsel on this point without any merit.

We agree with the submissions of counsel for the claimant that once he had accepted the offer of appointment in writing, reported to duty, went through orientation and was posted to work in Masaka, he could only leave the public service in accordance with section A-N of the Public service  standing orders i.e.

1.  Retirement following attainment of the standing minimum or mandatory retirement age.
2. Retirement on abolition of office
3. Compulsory retirement to facilitate improvement in a department or to effect economy
4. Retirement in public  interest
5. Retirement  on …………..grounds
6. Dismissal for misconduct
7. Termination of probationary appointment
8. Resignation
9. Abscondment of duty
10. Death
11. Transfer to other Public service
12. Retirement on medical grounds
13. Specific period of employment stated in agreement  coming to an end; and
14. Premature termination of contract appointment in accordance with terms of the agreement.

We consider the letter written by the claimant on 10/03/2009 as an inquiry into whether or not the claimant was entitled to be paid a salary that he previously was paid since the contract had been sealed.  It was therefore expected that the powers that be, would offer a reply to the inquiry stating that the claimant was not entitled to a salary personal to holder, for the reasons that counsel for the respondent ably presented to this court in his submission.  This would be emphasizing the contents of the appointment letter and therefore it would be up to the claimant to either prematurely terminate the contract in accordance with (n) above, abandon duty in accordance with (i) above resign in accordance with (h) above or in accordance with any other section of the law to leave the Public Service.

It was contended on behalf of the respondent that the claimant was given a fair hearing through the various letters and through the personal interface with the chairperson of the Public Service Commission.

A fair hearing is constituted when a concerned party is informed of the infractions leveled against him with full particulars of the said infractions and when he is given chance  to organize a defense to the same.  It is a fair hearing if  an impartial Arbitrator is appointed to make a decision after listening to both parties.  In the instant case, none of the above took place as one witness for the respondent; R. M. Kafeero testified in cross examination that a hearing was not necessary since the matter was not a disciplinary matter. 

We therefore agree with the claimant that he was not accorded an opportunity to be heard before the withdrawal of his appointment. 

In view of the simple definition of a fair hearing above mentioned, we do not consider letters written to the claimant and the casual meeting of the claimant with the chairperson of the Public Service Commission as a hearing.

The claimant contended that he was victimized.  Although we do not find any merits in the allegations that the claimant was victimized because of his refusal to conceal certain transaction involving powerful Public Officers, we think it was erroneous of the Accountant General to recommend withdrawal of the claimant’s appointment on the ground that the claimant had declined to accept the appointment instead of replying to the claimant’s query as to whether he was entitled to his previous salary. It was erroneous of the same officer when he declined to reconsider the withdrawal of appointment when Public Service Commission suggested to him to do so.

All in all, it is our finding that the claimant’s appointment was unlawfully withdrawn and therefore the 2^nd issue is resolved in the negative.

The last issue is whether the claimant is entitled to the remedies sought.

1.  Declaration of wrongful withdrawal of appointment

In view of the above findings of the court, this relief is granted.

1. Salary and emoluments

In the recent case of Kyambadde Vs Sembabule Town Council and Sembabule District Local Government, labour Dispute 040/2016 this court held inter alia that:

“the claimant having been an employee on a pensionable establishment and having been unlawfully terminated his service was continuous and it should not be interrupted by the period during which he was unlawfully dismissed”.  The court ordered payment of salary of the claimant from the date it was stopped to the date of the award at an interest rate of 8% per year.

The instant case is not different.  Therefore just like in the case of Kyambadde (supra) in this case the claim for salary as per the appointment to the job of internal auditor is allowed excluding allowances running from the date it was stopped till the date of this award at an interest rate of 08% per year.

1.  Reinstatement in the service

Section 71(6) of Employment Act provides

1.  The  employer does not wish to be reinstated or re-employed.
2. The circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable
3. It is not reasonably practical for the employer to re-instate  or re-employ the employee or
4. The dismissal is unfair only because the employer did not follow a proper procedure

In the Kayambadde case cited above, this court found that that reinstatement would be ordered if:

1.  The employee is ready and willing to work with and for the employer that originally dismissed him.
2. The employer has the ability and capacity to re-employ the employee that he/she originally dismissed.
3. The continued employment of the employee will not strenuously impair the relationship between the two parties to an extent of a likelihood of a second termination of employment.

In reply to the submission of reinstatement, counsel for the respondent seemed to be under the impression that the court would hold that the respondent had lawfully withdrawn the appointment and that therefore there was no contractual relationship.   That is the reason he submitted thus: 

“It would be unjust to order the government institutions to reinstate the claimant in the absence of a contractual relationship between him and the Ministry of Finance, Planning and Economic Development”.

This court has already declared that the claimant’s appointment was unlawfully withdrawn.  Therefore the above submission does not hold water.

We do not find anything in the submission of the respondent to the effect that the re-employment of the claimant would be intolerable.  The claimant expressed willingness to work with the respondent especially so when the person he alleged had collided with him was no longer in the office.  This being a Government job, we have no doubt that the respondent has the ability and capacity to re-employ the claimant, especially so when there was no submission to the contrary.  The respondent having not shown any unnecessary hardship that could be encountered by re-employment of the claimant, the prayer of reinstatement is allowed.

1.  Declaration of unlawful termination of contract

Having held that the appointment of the claimant was unlawfully withdrawn, it follows that the contract of employment of theclaimant was wrongfully terminated and therefore we so order.

1. Payment of monies other than salary

It our considered opinion that moniesother than salary as expressed in the appointment letter and as accepted by the claimant, must be regarded and claimed under a category of special damages which means they need strict proof.No evidence was adduced to prove leave pay, payment in lieu of leave, payment in lieu of notice, overtime, fees, commissions, bonuses, travel, entrainment, utilities, housing and any other claims. Consequently this claim is not allowed.This also applies to the claim for special damages for disturbance allowance, night allowance as well as property allowance since the evidence did not prove them.

General damages

We have no doubt that the unlawful withdrawal of the claimant's appointment and the subsequent unlawful rendering him jobless caused untold plight, loss of earnings, damage to self respect and mental distress and all this tampered with his career progression calling for general damages. Given that this Court has already ordered reinstatement in the public service and a continuous career from the date of appointment, we think 300,000,000/ proposed by the claimant is far on the higher side. We are in agreement that 30,000,00/ will be sufficient for general damages with interest at 20% per year till payment in full.

Aggravated damages

We think it was callous of the officers of the respondent to arbitrarily withdraw an appointment of the claimant without due regard to his professional career and public service regulations. It was callous of them to instead of replying to his inquiry about his status in the new appointment after accepting the terms, to simply withdraw the appointment even after Public Service Commission asked them to reconsider. We think this is one of the circumstances that this court may order payment of aggravated damages and we think 15,000,000/ is appropriate with 20% per year till payment in full.

In conclusion, the claim succeeds in the above terms.No order as to costs is made.

SIGNED BY:

1. The Hon. Chief Judge, Asaph Ruhinda Ntengye
2. The Hon. Judge, Linda Lillian Tumusiime Mugisha

PANELISTS

1. Mr. Ebyau Fidel                           
2. Mr. Mavunwa Edson Han                       
3. Ms. Julian  Nyachwo                               

Dated:  22/9/2017