THE REPUBLIC OF UGANDA
THE INDUSTRIAL COURT OF UGANDA HOLDEN AT KAMPALA
APPEAL NO. 016/2016
(ARISING FROM LABOUR DISPUTE NO. 95/232/01)
BETWEEN
ELDORADO COMPANY LTD................................CLAIMANT
VERSUS
JOLOBA ROSETTE.................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 against the decision of a principle labour officer at the Ministry of Gender, Labour and social Development, Kampala.
FACTS
The respondent filed a labour complaint at the Ministry of Gender, Labour and Social Development. The record shows that one Nabwire Rebecca a Principal Labour Officer wrote to the appellant to report to her office with records for amicable settlement.
It is difficult on the record to follow the chronological order of events but suffice to say that there were a number of mediation meetings before finally the matter was fixed for arbitration on 15/4/2016. No arbitration proceedings are visible on the record. There is a ruling (Award) in favour of the respondent by one Rebecca Nabwire, Principal Labour Officer, Inspectorate.
18 grounds of appeal were raised but for purposes of disposing of the appeal we hereby state grounds 1, 2, and 3.
- The Principal Labour Officer erred in failing to follow the procedure as laid down by the Employment act No. 6 of 2006 and Employment regulations 2011 when having mediated between the parties and appointed a different labour officer to act as arbitrator, went ahead to make a decision as arbitrator herself.
- The Principal Labour Officer erred in making a ruling/decision as an Arbitrator havingonly conducted mediation but no arbitration hearing between the parties.
- The Principal Labour Officer erred in failing to give the parties a fair hearing and an opportunity to be heard before making an arbitration decision.
SUBMISSIONS:
Relying on section 13(1)(a) and the authorities of Sure Telecom Vs Brian Azemchap, Labour dispute – appeal No. 008/2015 and Action Aid Uganda Vs David Tibekanga, Labour Dispute No. 005/2014, Counsel for the appellant argued that by acting as both mediator and adjudicator in the same complaint, the labour officer infringed on the appellant’s rights to a fair hearing and that the awards ought to be set aside.
In reply, counsel for the respondent argued strongly that mediation was at all material times done by one Moses Mukamba and one
Rebecca Nabwire only conducted arbitration.
This court in the Azemchap case (supra) emphasised the significance of a labour officer to choose between adjudication, mediation conciliation and arbitration as a method of resolving a labour dispute and not to apply two or more methods while resolving a complaint. Both counsel in this case seem to agree on this principle except that whereas the appellant suggests that the labour officer mixed two methods, the respondent suggests that different labour officers were engaged and that each one of them used a different method.
A careful perusal of the record reveals that, on 31/03/2016, one Nabwire Rebecca wrote to the Managing Directorof the appellant company referring to different mediation meetings and arranging for a last mediation meeting which she scheduled for7/4/2016 at 11.00 a.m. On 07/04/2016, the matter was referred for arbitration she scheduled for 15/04/2016 at 9.00 am. Earlier, on 24/03/2016, 23/02/2016, 9/2/2016, 10/03/2016 the record suggests that there were meetings intended to resolve the labour dispute, although the labour officer responsible is not mentioned and did not sign the record.
But clearly on 15/04/2016, the record is silent as to the existence of any arbitration proceedings. The undated letter from counsel for the appellants to the commissioner of Gender, Labour and Social Development received on 18/4/2016, is to the effect that no arbitration proceedings were taken and that the labour officer relied on the documents presented during mediation.
We are convinced that the same Nabwire Rebecca who handled mediation was the same person who wrote an arbitration ruling, the subject of the appeal. It is clear from the correspondence on the record that she handled mediation of the matter, yet she is the same person who wrote the ruling.
In the ruling itself, she refers to several meetings and observations made, yet she does not name the person who held those meetings and who came up with those observations. The impression we get is that the meetings and observations were her own. We reject the submission of counsel for respondent that mediation was before one Moses Mukamba because he does not appear in the proceedings (unlike Rebecca Nabwire who authored several letters calling for mediation and referring to mediation sittings) at all. As was held in the case of Azemchap (supra), it is a travesty of justice, when even after turning into an arbitrator no arbitration proceedings were available leading to a conclusion that the mediation information was the one used to arrive at the decision that she made.
This being the case, we hereby set aside the whole award of the labour officer and order a retrial before another competent labour officer who should be clear in the record of proceedings as to the date, the parties present, documentation or any other evidence available. If the labour officer chooses to straight away use adjudication method, he/she should call evidence and allow cross-examination of witnesses before arriving at a decision. If he/she opts to mediate, once mediation fails he/she must refer that matter to another or labour officer or to this court for adjudication.
Since ground number one and two dispose of this appeal, we do not find it necessary to engage in the rest of the grounds.
Each part to hear own costs.
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. AdrineNamara………………………………………….
Dated: 15/9/2017
