THE REPUBLIC OF UGANDA

THE INDUSTRIAL COURT OF UGANDA HOLDEN AT KAMPALA

LABOUR DISPUTE CLAIM. NO. 033/2015

(ARISING FROM HCT-CS NO. 73/2015)

DR. OMONA KIZITO................................CLAIMANT

VERSUS

MARIE STOPES UGANDA.................RESPONDENT

BEFORE

1. Hon. Chief Judge Ruhinda Asaph Ntengye                                         

2. Hon. Lady Justice Linda Tumusiime Mugisha

PANELISTS

1. Mr. Ebyau Fidel
2. Ms. Rose Gidongo
3. Mr. Baguma Filbert Bates

AWARD

This is a claim arising from a memorandum of claim filed in this court alleging that the respondent unlawfully terminated the employment of the claimant.

Briefly the facts are:

The claimant, a medical doctor, was an employee of the respondent from 14/5/2012 on a fixed term contract of 2 years ending May 13^th, 2014.  From 4^th – 14^th November the claimant did not appear for duty (according to him he was sick).  The respondent was concerned and demanded to know why the claimant had not worked.  According to the respondent there had been several complaints against the claimant relating to hisnon attendance of duty.

Consequently on 29/11/2012 a disciplinary hearing was conducted against the claimant on allegations of

1.  Perpetual absenteeism
2. Taking un authorised leave
3. Un ethical conduct.

The hearing found the above infractions to be gross misconduct and the claimant was dismissed.

Both parties filed a joint trial bundle and the issues agreed are:

1. Whether the claimant’s dismissal was unlawful.
2. Whether the respondent was justified in deducting salary for the period that the claimant did not work.
3. What remedies are available to the parties?

Evidence

The claimant adduced his own evidence and that of the OpioNicholus. The Respondent  adduced  evidence from one  witness,  one Judith NamuyombaNsamba.  The evidence of the claimant was that he fell sick on 4/11/2012 and on 5/12/2012 he called his immediate supervisor one, Dr. AudoMilton to inform him.  From 5^th – 7^th November, he was admitted at Goodwill Polyclinic and he was advised to take a bed rest up to 14^th November 2012 when he reported for duty.  On 19^th, he went for review at the same medical facility and resumed work fully on 20/11/2010.

It is when he called one Judith to ask about his salary underpayment that questions of his absence from duty were raised and after explaining, he was advised to report to headquarters on 28/11/2012 and when he did, both Judith and another grilled him about his absence from work and he explained that he had got sick leave from his supervisors.

He then returned for duty on 29/11/2012 only on 8/1/2013 to be handed a letter of dismissal.  He never received any terminal benefits.

One Opio Nicholas, witness for the claimant corroborated the story of the claimant that indeed he was sick and that he went to a medical facility where he (the witness) administered treatment.

In defence of the claim, one Judith Nsamba told court that following persistent complaints regarding absence of the claimant from duty and in particular his absence from 4^th – 14^th November 2012, the claimant was summoned for a disciplinary hearing which he attended and the disciplinary committee found him culpable of the abscondment from duty which was gross misconduct and dismissed him after a fair and just disciplinary hearing.

Submissions:

The case for the claimant, as we understand it, is that having fallen sick, he reported to his supervisor who gave him leave and he went for treatment during the days he was said to have absconded. 

His case is also that his trial before the disciplinary committee was unfair and did not conform to the Human Resource Manual of the respondent as well as the Employment Act rendering the dismissal unlawful.

In his submission, counsel for the claimant contended that his client was prevented by sickness from reporting for duty and that he got sick leave from one
Dr. Audowho the respondent should have called to rebut the claimant’s evidence.  Counsel argued that there was no disciplinary hearing because his client went to Headquarters to check on his underpayment issues only to be called into office to be questioned by two officers about his absence on duty which he explained.

He contended that his client was not accorded a fair opportunity to prepare for the disciplinary hearing.  He relied on section 66 of the Employment Act 2006 and the case pf Alex Bwayo Vs DFCU Bank HCCS 78/2012.

He also challenged the disciplinary committee for having not been properly constituted in accordance with the Human resource manual paragraph 8.5.4as well as the authority of Milly K. Juuko Vs Opportunity Bank, HCCS 327/2012.  Counsel disowned the report of the disciplinary hearing, submitting that it had been altered to a different date.

The respondent on the other hand strongly submitted that the claimant failed to apply for leave in accordance with clause 4.2.1. of the Human Resource Manual which was mandatory and the claimant having been absent from duty for over 5 days, he was taken to have absconded.

Counsel argued that the Line Manager of the claimant was the Quality Assurance Manager and not the Director of Medical Development Team and having failed to get approval from his line Manager, he absconded from work which was gross misconduct attracting a summary dismissal.  He argued that the respondent complied with section 68 of the Employment Act since at the time the dismissal was done, the fact of sickness of the claimant was not known to the respondent, making the evidence of the claimant’s witness irrelevant.

He contended that the conduct of the claimant had fundamentally broken his obligations as a medical doctor warranting dismissal.  He argued that since the claimant was given an opportunity to defend himself, procedural fairness of a hearing before a disciplinary committee had been complied with.  He relied on the authority of CarolineKarisaGumisiriza Vs Hima Cement Limited and Mugisha JohnBosco Vs Centenary Rural Development Bank HCCS 162/2008 and this court’s owndecision inBenon. H. Kanyangoga and others Vs B.O.U LDC 080/2014.

He submitted that failure to serve summons onto the claimant would not affect fairness of the hearing since the claimant in fact knew the date and appeared for the hearing.

Evaluation of Evidence and the law

It is not disputed that the claimant on the dates indicated was not on duty. The Question to be answered is: whether he was lawfully absent from duty.  Section 55of the Employment Act provides for circumstances when the employee does not work because of sickness and yet he/she is paid for the period of sickness.  Section55 (2) provided

“For the employee to be entitled to sick pay as referred to in subsection (1), the employee shall

1.  Notify or cause to be notified as soon as is reasonably practicable, his or her employer of his or her absence and the reason for it and
2. Produce, if requested by his or her employer and at intervals of not less than one week, a written certificate signed by a Qualities Medical Practitioner certifying his or her incapacity for work and duration of the incapacity.”

Although the above section of the law specifically concerns sick pay, we  form the opinion that it speaks volumes about the importance of an employee to be allowed off duty for reasons of being unable to work because of sickness.  If the same section allows payment of an employee for work that is not done for reasons of sickness, the same law must be interpreted to be of the effect that once someone is absent from work because of sickness, he may not be terminated forabscondment.  Thus under section 75 (i) of the Employment Act, illness or injury are some of the reasons that do not constitute reason for dismissal or imposition of a death penalty.

The Human Resource Manual of the respondent in paragraph 4.2.1. provides:

“Requests for all types of leave must be made on the application form ................from the Human Resource officer/Line Manager.  It is mandatory for every team member to complete the appropriate leave form before taking leave except sick leave, where a team member shall be required to complete the sick leave form upon ..................return.............

Team leader who fail to communicate and obtain approval will be subject to disciplinary action........... ”

It was the evidence of the claimant that one Dr. AudoMilton was his immediate supervisor and that he communicated to him but the respondent claimed that the said Audowas not the supervisor of the claimant.  In cross examination the claimant insisted that on transfer to Lira, he was to report to the Quality Assurance Manager, who was Dr. AudoMilton.

In evidence in chief one Namuyomba Judith told court that on transfer from Bushenyi the claimant was to report to one Teddy Namatovu, the Regional manager.  This Teddy Namatovu was not called to testify but Exhibit C7, a transfer from Bushenyi dated 05/12/2012 indicates that the claimant would be reporting  directly to the Quality Assurance Manager and the letter was interestingly signed by the same Judith.  The same Judith in cross examination revealed that although Dr. Audo was in charge of Quality Assurance, he in fact was a Director Medical Development Team.  Again, this Audo was not called to testify.  Given the absence of both Dr. Audo  and Teddy Namatovu, and given exhibit C7 and the evidence of the claimant that he reported to Dr. Audo, we have no reason on the balance of probability to believe the evidence of the respondent.  Instead it is our satisfaction that the claimant while  in the Lira Outreach on transfer from Bushenyi, reported to Dr. Audo, the Quality Assurance Manager, although by exhibit C8 change ofreporting line dated 10/12/2012, effective 1/1/2013, the claimant was to report to the regional Manager on administrative issues and to the Quality Assurance Manager on technical issues.

The incident of sickness happed in November 2012. On careful perusal of the offer of appointment dated 10/05/2012, the claimant was directly reporting to the director of Medical Development Team.  Since according to the only evidence of the respondent, the Director of Medical Development Team was the same person as the Quality Assurance Manager, even just after appointment and before transfer from Bushenyi, it is clear that the claimant was reporting to the same person.

Whereas in his submission counsel for the claimant contended that his client properly informed his supervisor about his sickness, counsel for the respondent argued that the claimant willfully absented himself from work without seeking authorization contrary to the internal policies which was a fundamental breach necessitating dismissal.

We are convinced from the evidence available that the claimant informed his supervisor, one Dr. Audo.  The  record also reveals that one Teddy Namatovu, a Regional Manager, was informed of the sickness of the claimant.  In an email she stated “the last time I talked to him (Dr. Omona) was  on Monday 5/11 and he asked me for a day off that he was not feeling fine.........”  Therefore  we have no doubt  that management was informed about the sickness of the claimant and the submission that this fact was not known to the management at the time of the disciplinary hearing or at the time of taking the decision to dismiss the claimant is not acceptable to us.  Contrary to the provisions  ofsection 68 of the EmploymentAct (which the respondent attempted to rely on), the evidence suggests that the respondent genuinely believed or should have known that the claimant was sick during  the dates in question.

It was the claimant’s  evidence that he was informed by the respondent’s Human Resource manager that it was not necessary to fill the sick leave form   after reporting back on duty.  Our reading of paragraph 4.2.1 of the Human ResourceManual for the respondent informs us that it was mandatory to fill the sick leave form upon return and we think that indeed the claimant should have filled the same.   In the absence of the Human Resource Manager, we cannot be sure that he was advised against same.

Be that as it may, we still think that failure to complete that sick form perse would not reverse the fact that he had been sick and that his supervisors knew about it.  We do not think that this fact would make the claimant’s absence from duty a fundamental breach, what would make it so, would be the fact that he was absent without authorization, which as already discussed was not the case. Was theclaimant afforded a fair disciplinary  hearing?

The  Human Resource Manual of the respondent provided under paragraphs 8.5.4 that  the disciplinary committeeconstituted 3 persons entitled to sit on a recruitment panel for a particular position and that a designated official from the human resource office provides expert advice with no voting rights.

In the case before us, the disciplinary committee constituted 2 persons and one of them was from Human Resource department.  It is our view that this was contrary to the Human Resource Manual and that it was prejudicial to the clamant.  It is clear from the evidence that the claimant was not informed of the charges before he appeared for the hearing.  The evidence of the only  witness to the respondent is to the effect that the claimant was called on 20/11/2012 on phone to pick his letter on  allegations of absenteeism from duty to which the claimant replied he would be available on 29/11/2012.

The claimant’s evidence however is to the effect that he called Human Resource Manager on 26/11/2012 about his being under paid  upon which the manager asked him about his failure to report on duty which he explained.  According to him, it was at this time that he was told to go to the office on 28^th.

In our considered  opinion the absence of a formal charge detailing particulars of the offences committed was in breach of aspects of a fair hearing.  We are not satisfied on the evidence that the claimant was given sufficient time to prepare for his defense since we are not certain of the date and time he was informed of the charges given the nature of information  and the discrepancy as to when the said information was received by the claimant.

In conclusion the minutes of the hearing state:

“Dr. Omona has had issues in regards to absence from work right from Bushenyi Outreach where he attributed this issue to him being far from his home area warranting his transfer to Lira outreach.  This transfer was intended to settle him and minimize his absence but the trend persisted.  Dr. Omona should be dismissed from employment in light of frequently absenting and taking leave without authorization....”

It seems to us that the basis of dismissing the claimant was his perpetual absenteeism without authorization yet the evidence adduced had nothing to do with his absence from duty having been perpetual or common.  No evidence was adduced to support the claimant’s absence from duty when he was in Bushenyi outreach.  The only evidence adduced from the respondent related to the claimant’s inability to attend to duty between 5^th – 14^th November 2014.  The evidence of one Judith that the claimant used to recruit untrained and unauthorized persons (locum doctors) to sit for him during his absence was destroyed by an email from one BenardAdupo who wrote:

“From 5^th -13^thNovemberwe  had no doctor, we were for camping in Otuke district, many BTL clients were missed.  On 12^th, we got the locum doctor who worked for us in Alebtong Health Centre IV, on the 14^th November.  He reported on duty and is still with us”

This does not in any way suggest that the claimant took it upon himself to recruit doctors to cover him while he was away on un authorised leave as the evidence of Judith tends to imply.There was a huge lacuna between the evidence and the conclusion or the basis of the decision by the disciplinary committee and this eroded  the principals of natural justice and fairness.  The claimant may have been notorious for absenteeism according to the respondent, but this notoriety according to principals of natural justice had to be brought to his attention for his response before the respondent could rely on it to terminate the employment.

Accordingly, we find that the claimant was not accorded a fair hearing before a competent disciplinary committee and because of this fact and the finding of this court that in fact the claimant was sick during the period in question and the respondent was aware, the termination of the employment in our considered opinion was unlawful.

The second issue relates to justification of the deduction of salary for the period the claimant did not work.  Having found that the claimant was sick and was with permission, it follows that under section 55 of the Employment Act, the claimant is entitled to be paid for the period he was sick.

The next question is whether the claimant is entitled to reliefs sought.

Counsel for the claimant submitted that his client was entitled to 47,708,000= being salary for 14 months as compensation for unlawful/unfair dismissal.  He relied on Bank of Uganda Vs Betty Tinkamanyire S.C.C.A 12/2017 and a Ghanaian case of Agbettoh Vs Ghana Cocoa Marketing Board (19184-86 LLRD 16).

Counsel in the same vein argued that the claimant was entitled to general and aggravated damage.  He relied on various authorities as cited in his submissions.

We must state categorically that compensation for unlawful termination under section 78 is intended to guide a labour officer as to how much and under which circumstances he/she may order the culprit employer to pay for having unlawfully terminated his/her employee.

This court is not a labour officer’s court. It is a court in the mainstream of the court system in Uganda exercising powers of the High court.  Therefore section 78 of the employment Act does not apply to this court and therefore the court can exercise its discretion to award damages as any other courts of law.

Counsel for the respondent argued that the claim of 47,708,000/= for the un completed term of contract was not tenable at law.  He relied on Barclays Bank VsGodfrey MubiruCA  1/98 and Vs Betty Tinkamanyire(Supra).

We have listened to both counsel and we have also perused the authorities cited.  We have at the same time perused the authority of OmunyokolAkol Johnston VsAttorney General SCCA 06/2012 and the impression we get is that damages are not limited to the value of the notice that the employee is entitled.  The impression we get is that damages are assessed by the court depending on the circumstances of a given case and in the discretion of the court.  As a result of the courts disapproval of the manner of dismissal of the employees, courts have generally granted general damages.  This court did the same in KANGAHO SILVER VS ATTORNEY GENERAL, LABOUR CLAIM 276/2014 and KANAKYLYA DAVID VS ELECTORAL COMMISSION LABOUR DISPUTE 102/2014.

In the case before us, the claimant was on a fixed contract for 2 years.  It was terminated unlawfully when the claimant still had 14 months to work.  This left the claimant without any source of income to support his family which was hurting not only him but his family.  The claimant earned a salary of 2,500,000/= per month. 

We are of the opinion that 32,000,000/= will be sufficient as general damages.  We do not find any factors that necessitate the award of aggravated damages.

As already discussed, the claimant was dismissed without any notice, yet under his contract he was entitled to one month’s salary in lieu.

Having decided that the dismissal was unlawful, the submission of counsel for the respondent that it was justified is not acceptable.  Therefore the claimant is entitled to 1 month’s salary in lieu of notice.  For the same reasons the claimant shall be entitled to severance pay as prescribed in the Human Resource Manual, at one week’s pay for every year of service.

All in all an award is hereby entered in favor of the claimant in the following terms.

1. The dismissal of the claimant was unlawful.
2. The claimant is entitled to all deductions made from his salary for the reason that he had not been at work when he was sick.
3. The claimant is entitled to one month’s salary in lieu of notice.
4. The claimant is entitled to severance pay at 1 week’s pay for every year of service as per the Human Resource Manual.
5. The claimant shall be paid 32,000,000/= as general damages.
6. No order as to costs is made.

BEFORE

1. Hon. Chief Judge Ruhinda Asaph Ntengye          

2. Hon. Lady Justice Linda Tumusiime Mugisha      

PANELISTS

1. Mr. Ebyau Fidel                                                   
2. Ms. Rose Gidongo                                               
3. Mr. Baguma Filbert Bates                        

Dated:28/07/2017