THE REPUBLIC OF UGANDA
THE INDUSTRIAL COURT OF UGANDA HOLDEN AT KAMPALA
LABOUR DISPUTE APPEAL NO. 019 OF 2015
(ARISING FROM LC CB/01/131 OF 2015)
BETWEEN
JESSICA NAMAYANJA KISSEKA........................... CLAIMANT
AND
ST. RAPHAEL OF ST. FRANCIS
HOSPITAL NSAMBYA................................................... RESPONDENT
BEFORE
- The Hon. Chief Judge, Asaph Ruhinda Ntengye
- The Hon. Judge, Linda Lillian Tumusiime Mugisha
Panelists
- Mr. Adrine Namara
- Mr. Baguma Filbert Bates
- Mr. Michael Matovu
AWARD
This is an appeal against the decision of a District Labour Officer sitting at Makindye. The following are recorded as grounds of appeal
- That the Labour Officer erred in law when, having found that the appellant was unlawfully summarily dismissed from her employment with the respondent and that the labour officer had no jurisdiction to award general/aggravated damages and costs, he failed to refer the matter to the industrial court for consideration.
- The Labour officer erred in law when he proceeded to hear and settle the appellant’s complaint well knowing that he had no jurisdiction to grant the remedies/reliefs sought by the appellant and set out in the complaint.
The respondent filed a cross appeal and it contained the following grounds
- That the labour officer erred in law when he entertained and made a ruling against the cross appellant which is not a legal entity, hence has no capacity to sue or be sued.
- In the alternative, that the labour officer erred in law when he misapplied the law thereby reaching a wrong conclusion that the cross respondent (appellant) was unlawfully summarily dismissed from her employment.
In arguing the above grounds both counsel opted to frame issues out of the grounds and both submitted not on the grounds but on the issues they framed.We think this was wrong since appeals are always based on grounds and not on issues unlike in the ordinary suits.We shall therefore proceed to decide this appeal by considering the grounds on which it was based.
It was the appellant’s submission on ground 1, that since the labour officer had no jurisdiction to award general or aggravated damages he ought to have under regulation 3 of the rules of this court referred the matter to this court.
Counsel for the respondent argued that the question before the labour officer was whether the appellant was unlawfully dismissed and for this the labour officer had jurisdiction and the awards granted were within his jurisdiction. He strongly submitted that a finding by a labour officer of unlawful dismissal could not automatically lead to an Award of aggravated damages.He relied on URA Vs WANUME DAVID KITAMIRIKE.
On perusal of rule 3 of the rules of this court (labour Disputes arbitration and Settlement) (Industrial court procedure) Rules, 2012, we find that the labour officer is only obliged to refer the matter at the request of one of the parties as provided under section 5 of the labour disputes (arbitration and settlement) Act 2006.
The proceedings before the labour officer donot reveal this kind of scenario.None of the parties is shown in the proceedings to have requested the labour officer to refer the matter to this court.Thelabour officer therefore cannot be faulted for failure to grant what was not requested for.
Nonetheless, there is no doubt thatthe labour officer under section 78 of the Employment Act is limited as to how far he/she can go in awarding compensation where he/she finds that an employee was unlawfully terminated or dismissed.
In the recent case of NETIS UGANDA VS CHARLES WALAKIRA(Labour Dispute Appeal 022/2016) this court while faulting the labour officer for giving compensation beyond what is authorizedunder section 78, held (inter alia) that where the labour officer considers thatcompensationdeserved by a dismissedemployee is beyond what she/he is empowered to give under section 78, he/she has the option to refer the issue to this court for determination.
The award of the labour officer concerning aggravated/, general damagesstates;
“The Labour officer doesn’t have jurisdiction of these and as such can’t award the same.The complainant is advised to pursue the same from the Industrial court.”
We commend the labour officer for having appreciated the limits provided in section 78.
Be that as it may, section 94(3) of the employment Act empowers this court to confirm, modify or overturn the decision of the labour officer.
We do agree with the submission of counsel for the respondent that the finding of a labour officer (or indeed of any other court) including this court) that an employee was unlawfully terminated or dismissed does not necessarily call for an award of aggravated damages.These are damages meant to punish an employer where there is evidence that the employer had malice which was meted onto the employee causing him embarrassment.They are only awarded if in the opinion of the presiding officer, the employer intended the employee to suffer over and above what an employee in the same workstation under the same circumstances would ordinarily suffer.They are damages in addition to general damages which are simply a compensation to put the injured party in the position she/he was in, or would be in, if the damage had not been occasioned to him/her.
Consequently we also agree with counsel for the appellant that where a finding is made that an employer unlawfully dismissed an employee, such unlawful dismissal occasions loss to the employee for which the employee deserves general damages..
Consequently, we do not find any merit in ground No. 1 and we dismiss it.As for ground 2 weagree with the respondent that the issue for determination before the labour officer was whether or not the respondent unlawfully terminated the employment of the appellant. Obviously the labour officer had jurisdiction under sections 70,71 and 78 of the Employment Act and therefore we do not find merit in ground 2 which is herby dismissed
In the cross appeal, two grounds were framed but in his submission, the respondent, and rightly so, decided to abandon ground No. 1.He submitted only on ground No. 2 i.ethe labour officer erred in law when he misapplied the law thereby reaching a wrong conclusion that the cross respondent was unlawfully summarily dismissed from the employment with the cross appellant.Counsel strongly argued that the cross appellant was terminated with payment of cash in lieu of notice and that this could not be called unlawful termination.He contended thatthe appointmentletter of the cross appellant provided for termination by either party with a notice and that the claimant was terminated in accordance with the contract and also with section 58(3)(b) of the Employment Act. He reiterated that where as the letter of termination ended the contract with immediate effect, the same letter provided for payment of all that was due to the claimant and later on, one month’s salary in lieu of notice was paid.
It was the appellant’s submission that since termination was of immediate effect without provision of notice or payment in lieu of notice, thesubsequent payment in lieu of notice was of no legal consequence, making the termination unlawful.
In his Award, the labour officer had this to say:
It seems to us that both counsel as well as the labour officer had a view that for as long as the contractual notice period was complied with, the termination would be lawful.The labour officer faulted the cross appellant for terminating the appellant with immediate effect without providing notice and in his opinion the subsequent payment in lieu of notice could not make the termination lawful.
We respectively disagree with all thethree.As this court held in FLORENCE MUFUMBA VS UGANDA DEVELOPMENT BANK LDC 138/2014 and in other cases, the provision of notice periods in contracts is only in addition to requirements provided for under section 68 of the Employment Act which stipulates for a reason for dismissal.
In the definition section of the Employment Act, section 2, “termination” and “dismissal” cannot be complete without giving a reason.Even under summary dismissal, the reason is “fundamental breach of the contract”.
Both the arguments of counsel and the proceedings before the labour officer do not reveal any reason or any disciplinary proceedings against the appellant in accordance with section 66 of the Employment Act.This being the case, it is our considered opinion thatthe finding of the labour officer that the appellant was unlawfully dismissed was correct, although we do not agree that a letter dated 21st November 2014 detailing entitlements of the claimant was of no legal consequence.This letter of termination was dated 10/11/2014 and it informed the appellant that “please do a formal handover to the Head of Department and upon completing your handover, the Human Resource Manager will pay you all that is due to you”.
All that was due was mentioned in the letter dated 21/11/2014 above mentioned.It included monthly salary for days worked up to 10/11/2014; two months payment in lieu of notice, payment of all accrued leave days as at 10/11/2014 accumulated gratuity to date as per policy and one month’s salary to help the appellant find alternative housing arrangement.The legal consequence of this letter was that it spelt out entitlements of the appellant which were alluded to in the letter of termination.
The appellant argued that she was entitled to general and aggravated damages.
We agree with counsel for the respondent that the record does not reveal any basis for aggravated damages.We decline therefore to award the same.
However, the labour officer having found out that the appellant was unlawfully terminated which we associate ourselves with; we find that the appellant deserved some form of compensation for such unlawful dismissal.This is because she lost means of livelihood.General damages are expected to cover such eventualities.
Section 78 of the Employment Act gives labour officers power to grant compensation for such loss to the maximum of 3 months’ salary which the labour officer in this case granted. We consider the word “compensation” used under section 78 of the Employment Act equivalent to the word “damages” used while this court or any other court grants relief to a successful party. The appellant was working as a pharmacist in a missionary hospital and by losing a job she lost livelihood of both her and her family and as already pointed out that was through an illegality. Under section 94(3) of the Employment Act, we feel that 3 month’s payment compensation would not be sufficient and so we award 10,000,000/=. The order of the labour officer granting 4,200,000/= as compensation is hereby set aside and replaced with an order for 10,000,000/= as general damages.
The orders relating to payment in lieu of notice and failure to grant a hearing are hereby upheld.
The appeal partly succeeds in the above terms.
No order as to costs is made.
Signed by:
- The Hon. Chief Judge, Asaph Ruhinda Ntengye
- The Hon. Judge, Linda Lillian Tumusiime Mugisha
Panelists
- Mr. Adrine Namara
- Mr. Baguma Filbert Bates
- Mr. Michael Matovu
Dated: 15/9/201