THE REPUBLIC OF UGANDA

THE INDUSTRIAL COURT OF UGANDA HOLDEN AT KAMPALA

LABOUR DISPUTE CLAIM NO. 153/2014

(ARISING FROM LABOUR DISPUTE NO. 256/2012)

BETWEEN

MUDDU HENRY ...................................................................CLAIMANT

VERSUS

CIVIL AVIATION AUTHORITY.........................................................RESPONDENT

BEFORE

1. Hon. Chief Judge Ruhinda Asaph Ntengye                                         

2. Hon. Lady Justice Linda Tumusiime Mugisha

PANELISTS

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

AWARD

The claimant originally filed civil Suit No.  280/2012 in the High court against the respondent claiming general damages, punitive and exemplary damages for wrongful, unfair and unlawful termination from employment.

Subsequently the file was referred to court and in the memorandum of claim filed under this dispute claim, 153/2014, under paragraph 3, the claimant’s claim is the same as in the civil suit in the high court.

BRIEF FACTS

The claimant was originally employed by the respondent as a Bird Hazard  foot patroller.  An opportunity arose for the interview for the post of Bird Hazard Control Assistant and the claimant applied and was interviewed.   He emerged the best candidate for the job that required at least a UACE which was already on his personal file.  Subsequently there were claims that the claimant had presented forged documents.  He was then asked to present original documents and on cross checking, it was discovered that the “A” level certificate presented after the interview was fundamentally different from the one originally on his file.  He was then called for disciplinary hearing and thereafter given a letter of termination.

ISSUE AGREED

1. Whether the claimant was wrongfully or unfairly dismissed?
2. What remedies are available to the plaintiff (claimant).

EVIDENCE

In his written, sworn statement, the claimant informed court that after successfully sitting for the interviews, he was required to provide his original certificates which he did on 26/08/2011.  On 19/10/2011, he was informed by the Human Resource that the academic papers he presented after the interview were forged and he was required to defend himself.

He filed his defence denying falsification of the academic documents and asked for a detailed report regarding verification of the academic papers which report was not given to him.

On 19/10/2011, he appeared before the disciplinary committee regarding presentation of forged academic papers and on 31/1/2016 he was dismissed.

The respondent, through its Human Resource Manager testified that, management organised internal interviews for the posts of Bird Hazard Control Assistant which the claimant highly passed but after an appointment letter was prepared and just before the claimant could commence work, queries regarding his academic credentials of “A” Level which credentials were critical for his new appointment arose.  Investigations were carried out by writing to UNEB which confirmed the allegations.  The claimant was then asked to defend himself and his defence was found with no merit and he was dismissed.

SUBMISSIONS

In his submission, counsel for the claimant contended that there were contradictions in the evidence of the respondent as to whether the alleged forged academic documents were already on the personal file of the claimant or were subsequently brought after the interviews.  He asserted that the allegation that the said forged documents were on his file was never brought to the attention of his client  for him to be able to respond and  therefore his right to a fair hearing was hindered.

In his submission, counsel again contended that the reason of a forged “A” level certificate was used as an excuse to dismiss the claimant since some of the people who attended the interviews did not possess “A” level certificate.  Counsel submitted "they only looked for a scape goat and came up with allegations that the claimant had forged academic documents"

He asserted that his client possessed an “A” level certificate, marked “K2” at page 20 of the trial bundle and that document “W” at page 25 of the trial bundle did not mention anywhere that the claimant did not possess an “A” level certificate.

For the respondent, counsel argued that the claimant’s dismissal was in accordance with the provisions of the respondent’s internal regulations since the allegations were brought to the claimant’s attention.  He submitted that the disciplinary committee considered both sides of the story following a process of investigation, a written defense and an oral hearing thus indicating  a fair hearing.  He argued that the fact that one Kizito did not have an “A” level certificate and sat for the interview did not take away the guilt of the claimant for submitting false documents.  He argued that disciplinary hearings were not of strict proof of allegations but on a balance of probability and that such balance was in favor of the respondent in this case since there were indeed false documents on the file of the claimant.

EVALUATION OF EVIDENCE AND DECISION OF COURT

It seems to us that the case for the claimant is that he was wrongfully and unfairly dismissed because he was not fairly heard on the issue whether the alleged forged “A” level documents were the ones already on his personal file or  the ones presented after the interview.  His case is that although both documents bear his names, the grades on the forged document were not his.

The case for the respondent on the other hand is that two “A” level academic papers in the names of the claimant with different grades were discovered and on investigations the Uganda National Examination Board confirmed forgery and therefore the claimant was held culpable after a hearing and properly terminated.

The right to be heard as expounded under Article 28 of the Constitution as well as section 66(1) of the Employment Act envisages the right of an accused person or a defendant to know the nature of the charges against him or her and to be availed an opportunity to defend himself or herself before an independent and competent tribunal.

The charges ought to be clearly spelt out including the particulars of the same so that the defendant clearly comprehends and appreciates them so as to be able to offer a defense.

In the instant case, the charge related to forged academic papers for “A” level and this was brought to the attention of the claimant to which he replied denying the forgery and insisting that the documents he himself supplied were not forged.  We are satisfied that the claimant appreciated the nature of the accusation and accordingly offered his defense.

However, the record does not show the actual disciplinary proceedings and therefore this court is not able to tell what exactly transpired at the actual hearing, but the actual hearing was not an issue either in the submissions of counsel or in the evidence of the claimant.  We shall therefore proceed on the premise that the hearing took place (since the claimant states that he attended the same).

We agree with the submission of counsel for the respondent that disciplinary hearings by their nature are not of strict proof but proof on the evidence of probability.

The case of GRACE MPROVU VS UMEME LIMTED LDC 004/2014; MUGISHA JOHN BOSCO VS CENTENARY BANK HCCS/62/2008 and GUMISIRIZA CAROLINE KIIZA VS HIMA CEMENT, HCCS 089/2012 are of the legal proposition that a disciplinary committee of an employer is not a court of law and is not expected to operate at the standards of a court of law. 

It is our finding that after sitting the interview for the post of Bird Hazard control Assistant, and when original certificates were required of the claimant, it was discovered that there existed an “A” level certificate in the names of Muddu Henry under registration No. U0532/518 reading one subject:  History and showing a pass at subsidiary level (exhibited as “K” 2).  An “A” level pass slip exhibited as “K” 3 under the same registration number shows one subject, History, passed but Economics, General paper and Geography are shown as “Fail”.

There also existed another certificate of “A” level in the same names under the same registration number with principal passes in history, Economics and Geography and a subsidiary pass in General Paper.  A corresponding “A” level pass slip showed the same result.

It is our finding that on being requested to verify the academic credentials of Muddu Henry.  One Dan M. odongo acting for the Executive Secretary of UNEB certified that the said Muddu Henry failed History, failed Economics, failed Geography and got a subsidiary pass in History.  We have no doubt that the verification of the results was authentic and referred to the same Muddu Henry, the claimant.

Although the evidence of the respondent, failed to establish which of the certificates and pass slips were originally on the personal file of the claimant, this in itself did not authoritatively absolve the claimant from wrongdoing.

On the contrary, the existence of different “A” level certificates bearing different grades in the names of the claimant, rightly raised eye brows to the management of the respondent.  The claimant denied having caused the appearance of the forged certificates onto his file, and indeed there was no direct evidence that he himself filed the said forged documents.

But in re-examination, the claimant testified that before the promotional exams, he had provided both “O” and “A” level certificates to the respondent and they were on his personal file, having filed his “A” level certificate in 2004. If indeed as the claimant informed court, the “A” level certificate that he had placed on the file was the same certificate that he produced after the interviews, where did the forged certificate come from?  At what point in time, did  it surface in the hands of the respondent?

There was no evidence of intrigue or malice.  There was no evidence that a competitor on the job could have placed the document on the file of the claimant.  The claimant had been declared the best candidate and his appointment letter had been prepared.

Given the circumstances, it is our position that the respondent having found the conflicting “A” level certificate was a key factor in the new job of the claimant, they were justified to terminate the services of the claimant on the ground that he had no qualification for the new job and on the grounds that he had committed a gross misconduct of falsification of academic papers.

We form the opinion and the conclusion that if the claimant had filed any “A” level certificate on his personal file, then it must have been the forged one which the respondent relied upon to shortlist him and eventually graded him as the best candidate.  On being asked to present the original certificate, we believe that the claimant realized he had been caught up between the lies and the truths and he produced the genuine certificate.  Alternatively, he had forgotten that he had filed a forged certificate and after being informed that he had passed the interview highly, he filed his genuine “A” level certificate not knowing that information had leaked that his academic credentials were questionable.  This is the only explanation that we feel can come out of the circumstances of this case.  We do not fault the respondent for acting the way it did.  We therefore hold that the claimant was not wrongly or unfairly dismissed.  The first issue is decided in the negative.

The second issue relates to damages available to the claimant.

Since we have declared that the claimant was lawfully dismissed, it follows that he is not entitled to any of the remedies claimed.

In the result, an award is entered in favor of the respondent with a declaration that the claim is hereby dismissed.  No order as to costs is made.

SIGNED BY:

1. Hon. Chief Judge Ruhinda Asaph Ntengye     

2. Hon. Lady Justice Linda Tumusiime Mugisha

PANELISTS

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

Dated: 22/9/2017