THE REPUBLIC OF UGANDA

IN THE INDUSTRIAL COURT OF UGANDA AT KAMPALA

LABOUR DISPUTE REFERNCE NO.046 OF 2015

FRANCIS OUMA MUBIDO …………………….……………COMPLAINANT

VERSUS

OAKWOD INVESTMENT LTD ………..……………………... RESPONDENT

BEFORE

1. THE HON. CHIEF JUDGE, ASAPH RUHINDA NTENGYE
2. THE HON. JUDGE, LINDA LILLIAN TUMUSIIME MUGISHA

1. MR.  ANTHONY WANAYAMA
2. MS. ROSE GIDONGO
3. MR. EBYAU FIDEL

RULING

Before this matter was set down for hearing the respondents raised a preliminary objection concerning erroneous filing of the claim and limitation of time.

Background

The Claimant was employed by the Masaka Ice plant and was terminated on 25/10/2007. He brought this claim for the recovery of Ugx 5,961, 886 in terminal benefits, damages, interest and costs of the suit. The respondents contended that the claimant had resigned his job and his resignation had been accepted.

The preliminary objections raised were as follows:

1. That the suit is premature, improperly filed before this court and as such barred in law as the claim is;

1. Neither in this court by way of reference envisaged under Rule 3 (1) and (2) of the Labour Disputes (Arbitration  and Settlement) (Industrial Court procedure) Rules, 2012 S.I no. 8 of 2012
2. Nor an Appeal against the decision of the labour Officer envisaged by section 94 of the Employment Act, 2006 as there has been such and or any decision of the Labour officer.

1. That the suit is barred in law and unsustainable as it is expressly prohibited by Section 3(a) of the Limitation Act  Cap 80

 Counselfor the respondents submittedthat the case had been brought to the Industrial Court as a Court of first instance contrary to Section 93 of the Employment Act and Section 5 of the Labour Disputes (Arbitration and settlement) (Industrial Court Procedure) Rules and rule 3 (1) and or 2 of theLabour disputes (Arbitration and Settlement) Industrial Court Procedure) Rules, 2012, S.I No.8 of 2012.  Section 93 of the Employment Act confers the jurisdictionto entertain labour disputesin the first instance onthe labour officer and not the Industrial Court.

Section 93 of Employment Act, provides that;

“Except where the contrary is expressly provided for by this or any other Act, the only remedy available to a person who claims an infringement of any of the rights granted under this Act shall be by way of a complaint to a Labour Officer.” 

Section 5 of the Labour disputes (Arbitration and Settlement) Act 2006 and rule 3 (1) and or 2 of theLabour disputes (Arbitration and Settlement) Industrial Court Procedure) Rules, 2012,S.I No.8 of 2012 on the other hand provides for the reference of matters from the labour officer to the Industrial Court.

Counsel contended that the matter had never been mediated by a labour officer and any attempts to do so had been frustrated by the claimant when he instituted CIVIL SUIT NO. 235 OF 2008, FRANCIS MUBIDO VSOAKWOOD INVESTMENTS LTD in the Chief Magistrates Court of Masaka. Civil suit No. 235/2008 was dismissed on the  27th February 2015 for being filed in a Court without jurisdiction.

Counsel further contended that the claimant instead of referring the matter to the Industrial Court via rule 3 (2) of the Labour disputes (Arbitration and Settlement) Industrial Court Procedure) Rules, 2012,S.I No.8 of 2012, erroneously appealed the Chief Magistrates decision via Section 94 of the Employment Act 2006. Therefore the suit should be dismissed with costs.

Therespondents further contended that according to section 94 of the Employment Act and Regulation 45 (1) madethereunder, appeals to the Industrial Court are based on the decisions of a labour officer. Section 94 provides that:

1.   A person who is dissatisfied with the decision of a labour officer made under this Act may appeal to the Industrial Court in accordance with this section…”

Counsel restated his argument that this matter was not filed as an appeal under Section 94 of the Employment Act and accordingly the suit was barred by law and should be struck out with costs for being premature and improperly before this Court.

The Claimant in reply argued that the matter had been mediated by different labour officers, the labour officer of Masaka and the Commissioner for Labour at the Ministry of Gender, Labour and Social Development andit was only when the mediation failed that it was referred to the Chief Magistrates Court in Masaka, because the Industrial Court was not in operation at the time.

According to him section 40(2) of the Labour Disputes (Arbitration and Settlement) Act and Rule 5 of the Labour Disputes (Arbitration and Settlement) (Industrial Court procedure rules)a reference to the Court can be made by letter.  It was his view that the Labour officer’s letter of referral to this Court marked “C” meantarbitration and mediation had failed and was a proper referral.

The respondents however insisted that Annexure “C” dated 17th March 2016 was a letter forwarding documents from the labour officer and not a reference of a labour dispute to this Court. In any case the memorandum of claim was filed on the 25th of March 2015 and the letter of referral was dated 17th March 2016.

They further contended that section 40 (2) (supra) was not applicable in this case because  Section 40(2) provided for situations where  the rules of procedure have not been provided for by the Labour Disputes (Arbitration and Settlement) Act2006 and not for referral of cases to the Court, as the claimant would want this Court to believe.  According to them in the instant case the procedure for referring a matter to the Industrial court is clearly stipulated in Rule 3(1) and or (2) of the Labour Disputes (Arbitration and Settlement) (Industrial Court procedure rules. Section 40 (2) provides asfollows:

They refuted the Claimants assertion that the matter had been mediated, arbitrated and referred to the Magistrates court for hearing. They insisted that the mediation had been frustrated by the Claimant when he instituted  CIVIL SUIT NO. 235 OF 2008 FRANCIS MUBIDO VS OAKWOOD INVESTMENTS LIMITEDin the Chief Magistrates Court of Masaka. They argued that theclaim was not dismissed because the Industrial court was not yet established but because it was filed in a court without Jurisdiction. In their opinion it should have been filed in the High Court which had original and unlimited Jurisdiction as was the practice at the time. They relied on the case of concernWORLDWIDE VS MUKASA KUGONZA HIGH COURT REVISION NO. 1 OF 2013in which Lady Justice Wolayo held that;

            “… the Employment Act removes jurisdiction from the Magistrates courts and confers jurisdiction of employment disputes on District Labour  Officers and the Industrial Court on appeal….” They also relied on the cases of JULIUS RUGUMAYO VS UGANDA REVENUE AUTHORITY LD NO. 27 OF 2014 and 201FORMER EMPLOYEES OF G4S SECURITY SERVICES UGANDA LIMITED VS G4S SECURITY SERVICES UGANDA LTD, SCCA NO. 18 OF 2010,on the original and unlimited jurisdiction of the High Court .

We have carefully considered both parties submissions and perused the record and the law relating to the institution of a claim in the Industrial Court and before deciding this matter we think it is necessary to highlight the law providing for the institution of labour disputes/cases.

Section 93 of the Employment Act 2006, provides that;

“Except where the contrary is expressly provided for by this or any other Act, the only remedy available to a person who claims an infringement of any of the rights granted under this Act shall be by way of a complaint to a Labour Officer.”  

Section 5 of the Labour disputes (Arbitration and Settlement) Act 2006 provides that

“ Section 5.

…  a labour Officer may refer disputes to Industrial Court

1. If, four weeks  after receipt of a labour dispute -

1. The dispute has not been resolved in the manner  set out in section 4 (a) or (c); or
2.  A conciliator appointed under  section 4 (b) considers that there’re is no likelihood of reaching any agreement

The labour officer shall, at the request of any party to the dispute and subject to section 6, refer the dispute to the Industrial Court…

Where a labour dispute reported to a Labour officer is not referred to the Industrial Court within eight weeks from the time of the report…”

Rule 3 (1) and or 2 of the Labour Disputes (Arbitration and Settlement) Industrial Court Procedure) Rules, 2012, S.I No.8 of 2012 provides that

1. Reference of A labour Dispute.

1. Where a labour officer is requested by a party to a dispute to refer the dispute to the court under section 5 of the Act the labour officer shall refer the dispute in the form specified in the first schedule…
2. Where a labour dispute has been reported to a labour officer and he or she has not referred it to the court or otherwise disposed of it within eight weeks, a party to this dispute may refer the dispute to the court in the form specified in the second schedule…”

From the record it seems that the Claimant filed his complaint with the labour office of Masaka around October 2007. The labour officer made attempts to mediate the matter as shown by his letters to the respondents dated 26/10/2006 marked Annexure “A”,  and  5/12/2007  marked Annexure “B.” The commissioner labour also intervened in the matter Vide letter to the respondents dated 8/11/2007. Before this process was concluded however the claimantinstituted CIVIL SUIT NO.235 OF 2008, FRANCIS MUBIDO VS OAKWOOD INVESTMENTS LTDin the chief Magistrates Court. TheMagistrate Grade 1 made an order on 26/06/2009 referring the matter back to the District labour officer for mediation and adjourned the matter sine die pending a settlement. Subsequently the District labour officer reinstituted efforts to invite the respondents for mediation vide letters dated 4/08/2009 Marked annexture D, letter dated 17/09/2009 marked annexture “ F” and   letter dated 21/01/2010 marked H. It seems the mediation failed and the abour officer refered the matter back to the Chief Magistrates Court  by letter dated 23/11/2013,  where it was  dismissed  for lack of jurisdiction (an undated order to that effect is Marked “A2”).Both Counsels howeveradmitted that the dismissal order was actually delivered on the 27th March 2015. 

It is clear that the claimant’scomplaint to the District Labour office in October 2007 was mediated by the District Labour Officer although the mediation was not concluded.  Instead a new case C.S No.235 of 2008 was lodged in the Chief Magistrates Court and dismissed for lack of jurisdiction. 

 We agree with the holding in the case of Concern Worldwide vs Mukasa Kugonza High Court revision No. 1 of 2013 (Supra) that under the Employment Act 2006, MagistratesCourts haveno jurisdiction to hear and determine employment disputes, the labour officer having been conferred with powers to handle them in the first instance and the Industrial Court having been given power to handle references and appeals from the Labour Officers.  The procedure of instituting a labour dispute is clearly stipulated by the law already quoted above.

It was not disputed that at the time the claimant filed his compliant the Industrial court was not yet constituted. Therefore in the absence of the Industrial Court which is a Court equivalent to the High Court, the labour officer should have referred the matter to the High Court or the claimant should have filed a suit in the High Court which has original and unlimited jurisdiction to hear any matter.(see Article 139 of the Constitution of the Republic of Uganda as Amended). This was not done.The reference to the Magistrates Court therefore was done contrary to the established procedure of instituting a labour dispute therefore rendering it a nullity. The decision of the Magistrates Court to dismiss the case for lack of jurisdiction was thereforecorrect.In the premises thecase remained pending before the Labour officer.

According to the established rules of proceduresfor this Court, the Labour Officer is expected to make reference to the court inaccordance with Section 5 of the Labour disputes Arbitration and settlement Act 2006, and Rule3 (1) and (2)  Labour Disputes (Arbitration and Settlement) (Industrial Court procedure rules, 2012 S.I No. 8 of 2012, rule 3 (1) of the rules of procedure,  which provide for a specified form. The Labour Officer instead referred the matter to this court  by letter. Counsel for the respondent argued that a reference must be done strictly in accordance with Section 5 of the Labour disputes Arbitration and settlement Act 2006, and Rule3 (1) and (2), while counsel for the claimant arguedthat underSection 40(2) of the Labour Disputes (Arbitration and Settlement) Act, 2006 and Rule 5 of the Labour Disputes (Arbitration and Settlement) (Industrial Court procedure rules) (Supra), a reference to the Court can be made by letter.  It was his view that the Labour officer’ letter of referral to this Court marked “C” was a proper referral.

The question iswhether the Labour Officers reference by letter was an effective reference to this Court.

The courts have held that court rules are hand maidens of justice and this Court has taken judicial notice of the fact that not all labour officers are trained in the Law.

Article 126 (2) (e) of the Constitution of Uganda as Amended, enjoins the court to administer substantive justice without undue regard to technicalities. Therefore fact that the labour Officer referred the matter to this court by letter in our considered opinion is sufficient reference and non-adherence to the prescribed form should not be used to lock claimants out of substantive justice. The Labour officer’s reference this case is properly brought before this court and it should stand.

Counsel for the respondent argued thatOrder 7 Rule 11 of the CPR provides for the rejection of suits  which appear from the statement of the plaint to be barred by  Section 3 (1) (a) of the Limitation Act cap 80.

It is not disputed that the claim is based on contract and any action based on contract must be filed within 6 years from the time the cause of action arose. In the instant case the cause of action arose on the 25thOctober 2007 when the claimant alleged he was terminated.  He filed a case  with the Labour Officer inOctober 2007 in time and the labour officer having failed to mediate it referred him to the chief Magistrates court where he filed Civil Suit No. 235 of 2008 which was dismissed in March 2015 more than 7 years after the cause of action arose.

We have already decided that the referral to the Chief Magistrate and not the High Court was a nullity and the matterwas pending before the labour officer after dismissal.

 Accordingly the claim having been filed within the time limits before the labour officer it was not time barred.For the above reasons the preliminary is over ruled No order as to costs is made.

1. THE HON. CHIEF JUDGE, ASAPH RUHINDA NTENGYE             ………………………….
2. THE HON. JUDGE, LINDA LILLIAN TUMUSIIME MUGISHA      …………………………..
3.  

1. MR.  ANTHONY WANAYAMA                                       …………………………………
2. MS. ROSE GIDONGO                                                        ………………………………….
3. MR. EBYAU FIDEL                                                                       ………………………………….

Date 15/11/2016