THE INDUSTRIAL COURT OF UGANDA HOLDEN AT KAMPALA
APPEAL NO. 07/2016
(ARISING FROM LABOUR DISPUTE NO. 95/2016
BETWEEN
BENARD MUHWEZI................................CLAIMANT
VERSUS
THE COOPER MOTOR CORPORATION (U) LTD..................RESPONDENT
BEFORE
1. Hon. Chief Judge Ruhinda Asaph Ntengye
2. Hon. Lady Justice Linda Tumusiime Mugisha
PANELISTS
- Mr. Micheal Matovu
- Mr. Baguma Filbert Bates
- Ms. AdrineNamara
AWARD
This is an appeal from the award of a Labour Officer at Kampala City Council authority (KCCA).
BRIEF FACTS
The appellant was employed by the respondent company as a Senior Sales Executive at a monthly salary of 1,200,000/= effective 18/09/2013. In December 2014 he resigned (allegedly after being threatened with dismissal).
While still in employment with the respondent, the appellant was involved in a transaction for the Sale of 8 hydraulic excavators to Uganda National Roads authority (UNRA) which entitled him to a sales commission. Although the appellant was key in the preliminary process for procurement of the said hydraulic excavators, the sale was complete and payment effected in December 2015 long after he had resigned.
He demanded his commission but the respondent declined to pay arguing that he was not entitled to a commission because by the time the appellant resigned the transaction in issue was not completed and it was only complete while he was not staff of the respondent company. As a result, the appellant lodged a complaint before a Labour officer at KCCA where he lost and hence lodged this appeal.
The following are the grounds of appeal
- The Labour officer erred in law when she handled the matter both by mediation and arbitration.
- The Labour officer erred in law when she held that the appellant was not entitled to payment of his commission arrears, because he had retired from employment.
- The Labour officer erred when she failed to properly evaluate the evidence on recorded thereby arriving at the wrong conclusion.
On ground No. 1, the appellant, through his advocates argued that the Labour Officer engaged in mediation and when this failed she resorted to conciliation and adjudication contrary to section 13(1)(a) of the Employment Act and contrary to this court’s award in SURE TELECOM VS BRAIN AZEMCHAP L.D. Appeal No. 008/2015 and that on this ground the Appeal should be allowed.
Counsel for the respondent on the other hand submitted that the Labour officer never engaged herself in arbitration or adjudication but rather resolved the dispute by mediation and conciliation.
On perusal of the award of the Labour officer and on perusal of the whole record, it is apparent and clear that the Labour officer relied on evidence (mostly on documents) presented by both parties to give the award she did. It is not clear to us what counsel for the respondent meant in his submission when he said that “there was never any evidence adduced before the Labour officer for her to adjudicate. She made her report based on the letters and documents that were submitted to her by both parties”.
In her ruling the Labour officer said
“This office attempted to handle the issue by way of mediation but still the parties did not reach consensus. So we resorted to the reconciliatory process through which this complaint was handled”.
As she concluded her reconciliation process, the Labour officer stated:
“As seen from the chronology of events of the deal, payment was made on December 23/ 2015 when the complainant was no longer an employee of the respondent. It has already been stated that payment is made to eligible staff; he was not a staff member at the time of payment and therefore not entitled to commission. It would have been a different story if he was terminated or dismissed by the respondent but he resigned by himself and disqualified himself from the deal”.
As was stated in the case of SURE TELECOM & AZEMCHAP (supra) a Labour officer is expected to employ one of either of the four methods of dispute resolution and these are; mediation, conciliation, adjudication and arbitration and once he/she fails in mediation or conciliation the course of action to take is not to employ arbitration or adjudication but to refer the complaint to either another Labour officer or this Court for either arbitration or adjudication.
A definition of the above terms as found in the Black’s Law Dictionary, Eighth Edition at pages45, 112,307 and 1003 is as follows:
Adjudication: The legal process of resolving a dispute, the process of judiciary deciding as case.
Arbitration: A method involving one or more neutral third parties who are usually agreed to by the disputing parties and whose decision is binding.
Conciliation: A settlement of a dispute in an agreeable manner. A process in which a neutral person meets with the parties for a dispute might be resolved; especially a relatively unstructured method of dispute resolution in which a third party facilitates communication between the parties in an attempt to help them settle their differences.
Mediation: A method of non-binding dispute resolution involving a neutral third partywho tries to help the disputing parties reach a mutually agreeable solution.
On perusal of the record, it seems to us that although the Labour officer claims to have used the methodology of conciliation, the fact that she came up with a decision after considering the documents of both parties, betrayed her stance.
In our considered opinion, having employed mediation in resolving the dispute, the Labour officer need not have employed conciliation (or reconciliation) since in our view both of these have the same major characteristic of not allowing the mediator or conciliator make a decision that is binding. The decision ought to emanate from the parties and agreeable to the parties though with the assistance of the mediator or conciliator
On the contrary, on perusal of the award, the Labour officer made a decision of her own after considering documents of both parties and we therefore reject the submission of counsel for the respondent that these were entirely conciliatory proceedings. The proper course of action in the circumstances of this case would have been for the Labour officer to refer the matter to another Labour officer for specifically either arbitration or adjudication. It is only during the process of arbitration of adjudication that evidence is adduced and basing on that evidence the Labour officer makes a decision which is then binding on both parties.
In a letter dated 29/03/2016, the Labour officer called on the respondent to give evidence on 7/04/2016 and in the letter she said
“Please note, this is a conciliatory meeting where every party will present their evidence in support of their claims upon which the conciliator will come up with a binding decision”.
It is our considered opinion that the above procedure fell short of resolving the dispute by conciliation or mediation. It all amounted to either arbitration or adjudication and yet the same Labour officer had initially attempted mediation.
Accordingly, we hold that this was in contravention of the procedure as enunciated in the case of SURE TELECOM & AZEMMCHAP and the decision therefore was null and void and it is hereby set aside. A retrial is ordered before another competent Labour officer for purposes only of either Adjudication or Arbitration so as to avoid issues of mixing up the four methods of dispute resolution. The Labour officer should call and put on record evidence from both parties and after cross-examination (if any) make a decision based on all evidence before him/her. No order as to costs is made.
SIGNED BY:
1. Hon. Chief Judge Ruhinda Asaph Ntengye
2. Hon. Lady Justice Linda Tumusiime Mugisha
PANELISTS
- Mr. Micheal Matovu
- Mr. Baguma Filbert Bates
- Ms. Adrine Namara
Dated: 15/9/2017
