a critical analysis on the law of summarry dismissal …
TRANSCRIPT
A CRITICAl ANAlYSIS ON THE lAW OF SUMMARRY DISMISSAl AND THE
REMEDIES AVAilABlE TO AN AGGRIEVED
EMPlOYEE IN THE CONTRACT OF
EMPlOYMENT IN
UGANDA.
BY
OYEllA lOY ODIKO
1153-01024-00677
llB
A RESEARCH DISSERTATION SUBMITTED TO THE SCHOOl OF lAW IN
PARTIAl FUlFilMENT OF REQUIREMENTS FOR THE
AWARD OF BACHELOR'S DEGREE IN lAWS OF
KAMPAlA INTERNATIONAl
UNIVERSITY.
JUNE 2019
DECLARATION
I Oyella Loy Odiko, declare that this report and the entire work in this booklet is
original and it is purely my own effort and that this report has never been submitted,
produced or transmitted to any institution in any form or means whether electronic or
mechanical including recordings and other ways of sending information.
Signed .... . ~ .• : ......... ..
OYELLA LOY ODIKO
Date ... J. ~. :. ~ .~. : .. ?-:-:'?. .l ~ .... .. .
APPROVAL
This is to certify that this research study has been written under my supervision and
satisfies the partial fulfilment for the award of Bachelor Degree in Law of the School of
Law, Kampala International University and has been submitted with my approval.
BRIAN KALINAKI{MR)
SUPERVISOR.
Date ..... ~9.t C:cd\?. .....
ii
DEDICATION
I dedicate this work to Almighty God who gave me the wisdom, courage and strength
to finally accomplish this task.
iii
ACKNOWLEDGEMENTS
My sincere gratitude goes to the Almighty God for his guidance, protection and favor
towards the successful completion of this work.
I wish to express profound gratitude and my deepest appreciation for those advice,
suggestion, contribution and constructive criticism towards the success of this work.
I am therefore thankful to my supervisor Mr. Brian Kalinaki whose systematic approach
to this project is of applaudable significance.
I am also indebted to my immediate family especially my parents Jasinta Apio Odiko
and Robert Perterson Okello Odiko and my beloved sister Aciro Dilis Odiko for their faith
in me, moral, and financial support.
Special thanks to the school of law that contributed in no small means to my
educational pursuit and also to the numerous authors whose materials one time or the
others I consulted in the process of formation of this work.
iv
Ed
Etc.
J
JA
JSC
L.J
MGLSD
SD
SDIP
SDS
Vol.
UST OF ACRONYMS
Edition
Etcetera
Judge
Justice of Appeal
Justice of Supreme Court
Lord Justice
Ministry of Gender, Labour and Social Development
Social Development
Social Development Investment Plan
Social Development Sector
Volume
v
LEGISLATIONS
The 1995 Constitution of the Republic of Uganda.
The Employment Regulations of Uganda, 2011.
The Employment Rights Act of the United Kingdom 1996.
The Industrial Relations Act of the United Kingdom 1971.
The Labour Dispute (Arbitration and Settlement) Act 2006 of Uganda.
The Labour Disputes (Arbitration and Settlement) (Industrial Court Procedure) Rules,
2012.
The National Employment Policy for Uganda.
The Trade Dispute (Arbitration and Settlement) Act of 1964 Cap 224 of Uganda.
The Uganda Employment Act of 2006.
vi
USTOFCASES
Am Jabi v Mbale Municipal Council [1975] HCB 191
Australian Blue Metal v Hughes [1963] AC 74 HL 499
Barclays Bank Uganda Ltd v Godfrey Mubiru SCCA No.9 of 1998
Blyth v Scottish Liberal Club 1983 IRIR
Carvilv Irish Industrial Bank [1968] IWLR 698
CFROman v E.A Railways[1972] E.A 403
E.A Trading v Deth [1907-1910] I.U.L.R 22
Ebiju v UMEME Ltd (Civil Suit) No.133 of 2012
Glover v B.L.N Ltd [1973] IR 388
Gough v Beachwood Music [1998]
Higgins v Mercil Semiconductor [2004]
Iceland Frozen Foods v Jones [1982] ICR
Jet Speed Air Services v Joan Tumuhairwe CACA 17 of 2000
John Bosco Oryem v Electoral Commission and UNEB Election CACA No.17 of 2000.
Kanyangoga & others v bank of Uganda (Labour Dispute Claim) No.80 of 2014
Kibuuka& others v Bank of Uganda (Labour Dispute Claim) No.184 of 2014
Kiggundu v Barclays Bank Ltd [1973] E.A 569
Kizito v Marie Stapes Uganda (Labour Dispute Claim) No.33 of 2015
Laurie v Faribburn[2008]
Laws v London Chronicles Ltd [1959] IWLR 698
Magara v UMEME (Civil Suit) No.39 of 2010
vii
Mukasa v UCB (1994)1 KALR 104
Nearyand Neary v Dean of Westminister [1999] IRLR
Obonyo v MTN Uganda Ltd (Labour Dispute Claim) No.45 of 2015
Olocho v City of Nyandowa [1966] E.A 467
OyetOjera v Uganda Telecom Ltd (Civil Suit) No.161 of 2010
Pepper v Webb (1969)2 All ER 216
Price v Movat (1862) CB 508
Soziv The Public Procurement and Disposal of Public Assets Authority (Civil Suit No.63)
of 2012
Uganda Commercial Bank and John Elatu v Uganda Airlines [1992] II KARL 162
Wakibi Fred v Bank of Uganda (Labour Dispute Claim) No.41 of 2014
viii
TABLE OF CONTENTS
DECLARATION .......................................................................................................... i
APPROVAL ................................................................................................................ ii
DEDICATION ........................................................................................................... iii
ACKNOWLEDGEMENTS ............................................................................................. iv
LIST OF ACRONYMS .................................................................................................. v
LEGISLATION ............................................................•............................................. vi
LIST OF CASES ....................................................................................................... vii
TABLE OF CONTENTS ............................................................................................... ix
ABSTRACT .............................................................................................................. xii
CHAPTER ONE: ...................................................................................................... 1
INTRODUCTION .................................................................................................... 1
1.0 Introduction ....................................................................................................... 1
1.1 Background of the study ..................................................................................... 2
1.2 Statement of the Problem ................................................................................... 7
1.3 Objectives of the study ....................................................................................... 8
1.3.1General Objective ............................................................................................. 8
1.3.2 Specific Objectives ........................................................................................... 8
1.4 Research Question .............................................................................................. 8
1.5 Scope of the study .............................................................................................. 9
1.5.1 Content/subject scope ..................................................................................... 9
1.5.2 Geographical scope .......................................................................................... 9
1.5.3 Time scope ..................................................................................................... 9
1.6 Research Hypothesis .................................................................................................. 10
1.7 Significance of the study ..................................................................................... 9
1.8 Research Methodology ....................................................................................... 10
1.9 Literature Review .............................................................................................. 10
1.10 Chapterization ................................................................................................. 16
ix
CHAPTER TW0 ..................................................................................................... 17
THE CONCEPT OF SUMMARRY DISMISSAL IN EMPLOYMENT CONTRACTS IN UGANDA ............................................................................................................... !?
2.0 Introduction ...................................................................................................... 17
2.1 Rationale .......................................................................................................... 20
2.2 What warrant summary dismissal ....................................................................... 21
2.2.1 Other circumstances justifying summary dismissal ............................................ 24
2.3 Distinction between summary termination and summary dismissal ....................... 24
2.4 Notification and hearing before termination/dismissal .......................................... 26
CHAPTER THREE .................................................................................................. 28
THE LAW AND PROCEDURE ON SUMMARY DISMISSAL IN UGANDA ............... 28
3.0 Introduction ...................................................................................................... 28
3.1 Legal Framework ............................................................................................... 28
3.1.1 The 1995 Constitution of the Republic of Uganda ............................................. 28
3.1.2 The Employment Act 2006 .............................................................................. 29
3.1.3 The Employment Regulations, 2011... .................................................................... 35
3.1.4 The Labour Disputes (Arbitration and Settlement) Act, 2006 ............................. 31
3.1.5 The Labour Dispute (Arbitration and Settlement) (Industrial Court Procedure) Rules, 2012 ....................................................................................................................... 37
3.2 Institutional Framework ..................................................................................... 33
3.2.1 Ministry of Gender, Labour and Social Development .......................................... 33
3.2.2 A Labour Officer ............................................................................................. 35
3.2.3 Industrial Court .............................................................................................. 38
3.2.4 Attorney General ...................................................................................................... 46
3.2.5 High Court .............................................................................................................. .46
3.2.6 Uganda Police Force ................................................................................................ 46
3.3 Decided Cases ........................................................................................................... .41
X
CHAPTER FOUR ......•...................•..........•.............•........•..•.......•...........•........... 48
THE RIGHTS AND REMEDIES AVAILABLE TO AN EMPLOYEE WHO IS DISMISSED SUMMRILY IN UGANDA ................................................................. .48
4.0 Introduction ..................................................................................................... .48
4.1 Rights .............................................................................................................. .48
4.1.1 A right to be heard ........................................................................................ .48
4.1.2 A right to proof of reason for termination ........................................................ .49
4.1.3 The right to natural justice .............................................................................. 50
4.1.4 Right to repatriation ........................................................................................ 52
4.1.5 Right to appeal ............................................................................................... 52
4.2 Remedies .......................................................................................................... 52
4.2.1 Damages ........................................................................................................ 52
4.2.2 Compensation ........................................................... , .................................... 53
4.2.3 Continuity of employment ......................................................................... , ..... 53
4.2.4 Severance allowance ....................................................................................... 54
CHAPTER FIVE ..................................................................................................... 56
DISCUSSION OF FINDINDS, CONCLUSSION AND RECOMMENDATIONS ........ 56
5.0 Introduction ... , .................................................................................................. 56
5.1 Discussion of Findings ........................................................................................ 56
5.2 Conclusion ......................................................................................... , .............. 57
5.3 Recommendations .... , ........................................................................................ 58
REFERENCES .......................................................................................................... 59
xi
ABSTRACT
The aim of this research is to conceptualize Summary Dismissal and investigate the
remedies available to an aggrieved employee in termination of Employment Contract
The form a Contract of Employment may be written or oral. However, for purposes of
certainty and prove, it is advisable that these Contracts be written.
Summary Dismissal issues are common in today's chaotic labour industry with many
ending in courts which could be as a result of inadequate knowledge about the law and
procedure of termination of Employment contracts or deliberate acts of decision makers
like Human Resource Managers, Managers, Managing Directors, etc.
This research finds out grounds for summary dismissal of an Employee and the
procedure there after as already stated
Aggrieved Employees who reasonably believe that their Summary Dismissal was
inconsistent with the labour legal regime of Uganda have right of recourse in the
competent Forum established under the Labour laws including the Industrial Court and
a fair compensation may be awarded if success is registered by the complainant.
Summarily Dismissal is a good tool for employer in maintaining his or her right to
terminate grossly errant employees but could turn unlawful if fundamental rules like fair
hearing to the Employee are breached in the process. This Research reports Findings,
Conclusions and make possible recommendations in the harmonization of labour
relations.
xii
CHAPTER ONE:
INTRODUCTION
1.0Introduction
The statutory concept of summary dismissal was first introduced in the Industrial
Relations Act 1971 of the United Kingdom, the Act followed the Report of the Royal
Commission on Trade Unions and Employers Association led by Lord Donovan, which
sought to reduce industrial conflict and introduce a claim for unfair dismissai1.Section
94(1)stipulates that an employee has the right not to be unfairly summarily dismissed
by his or her employer2• This right not to be unfairly dismissed and the corresponding
right to complain of unfair dismissal is only applicable to those who have the relevant
employment right and also by saying that, the employees are entitled to a fair reason
before being dismissed, based on their capability to do the job, their conduct, whether
their position is economically redundant on grounds of a statute or some other
substantial reason3•
The case of Australian Blue Metal v Hughes [1963] introduced the principle of
"reasonable notice" for the termination of an employee's contract, between 1963 and
1971. The British government introduced three major legislative frameworks that
sought to protect employee's rights with the principle of fairness as its foundation.
Firstly in 1963, the Contract of Employment Act was passed on the back of the decision
in the Hughes case, and the act introduced an obligation upon employers and
employees alike to give a minimum period of notice before terminating their
employment. The Redundancy Payment Act of 1965 which introduced a new and
revolutionary system of compensation for employees in the event of job loss, as long as
their employment was terminated for one of the prescribed reasons. The Industrial
Relations Act of 1971 which established employee protection in the case of unfair
1 The Modem Law Revision vol.31, No.6 (Nov, 1968), PP. 674-682. 2 Employment Rights Act 1996 ofthe United Kingdom. 3 The Modem Law Revision (supra).
1
dismissal, and the significant for this was that it allowed employees to appeal to a
tribunal in relation to the termination of their employment to ensure that it was done in
a fair, reasonable and legal manner4•
1.1 Background of the study
The fairness principle that was introduced by Freedland entails mutual relationship of
trust between both the employee and employer that neither will act in an arbitrary way
during the course of employment. In the case of an employer, it has suggested that an
employer's duties within this trust agreement fall into three distinct categories; firstly,
the newer implied terms which have quite recently been implied into the employment
contract, secondly, the obligations regarding the provision of work and thirdly the
obligations regarding remuneration. Most importantly in the first case which include the
terms around termination and the procedures that must be followed in order to
terminate a contract of employment both fairly and legally5•
There is some evidence that the trust duty is being seen by the courts as overarching
employees' duties, in the context of the common law and statutory remedy of unfair
dismissal regarding the common law, the trust duty has been used to define the type of
conduct by an employee which justifies his or her summary dismissal6•
In the case of Neary and Neary v Dean of Westminister, Lord Juancey of
Tullichettle in effect directly referenced the trust agreement when stating ...... "gross
misconduct justifying dismissal must so undermine the trust and confidence which is
inherent in the particular contract of employment that the master should no longer be
required to retain the servant in his employment"7•
The trust duty has been used to define an employee's obligations, in the context of the
unfair dismissal remedy in two ways and the first way is the recognition by tribunals
4 Australian Blue Metal V Hughes [1963] AC No.74 at Page 499 HL 'Freedland, M. 'Constructing Fairness in Employment Contracts' Industrial Law Journal (2007) at Page 136. 6 Boyle, M. 'The Rational Principle of Trust and Confidence' 27 Journal of Oxford Legal Studies (2007). 7Neary and Neary V Dean ofWestminister [1999] IRLR at Page 288.
2
that a breach of the trust duty can be some other substantial reason and so one of the
potentially fair reasons for dismissing an employee as explained in the case of Higgins
v Mercil Semiconductor [2004] and the second way is that, in some cases the
reasonableness of an employer's decision to dismiss an employee has been held to
depend on whether the employee was in breach of the trust duty as explained in the
case of Gough v Beechwood Music [1998] at page 813)8 ,
In deciding whether or not a dismissal is fair or not, a tribunal is charged with the task
of deciding whether or not an employer has acted reasonably in their treatment of the
employee in termination of their employment. In Iceland Frozen Foods v Jones
[19821 it was held that a tribunal must only analyze whether the employers conduct
was reasonable and not if whether the employee's dismissal was fair. Browne Wilkinson,
J in his judgment stated; " .......... the functional of the industrial tribunal as an industrial
jury is to determine whether in the particular circumstances of each case the decision to
dismiss the employee fell within the band of reasonable employer responses which a
reasonable employer might have adopted. If the dismissal falls within the band, the
dismissal is fair, if the dismissal falls outside the band it is unfair'19•
Under common law the fundamental concept is the individual contract of employment.
The common law provides that there is always an individual contract of employment
which is in theory a voluntary relationship into which the parties may enter on terms
laid down by themselves within which limitations imposed only by the general law of
contract. This agreement is assured to be entered into after a bargain. However this
freedom is an illusion under the capitalistic system though it was an ideology of
capitalism especially during the 191h century where laissez-fair ideology was dominant.
Many employees leave their jobs by mutual agreement or their employers dismiss them.
Regulatory authorities and legislative bodies in every society strive to manage and
stabilize social welfare by introducing regulations and laws to protect the interests of
8 Boyle, M (supra), Higgins V Mercil Semiconductor [2004), Gough V Beechwood Music [ 1998) UKEA T at Page 813. 9 Iceland Frozen Foods V Jones [1982) !CR.
3
both parties. One of these regulations is the Labour law governing the employee
employer relationship, which includes provisions of fair employment termination and
dismissal procedures. In general the aim of most codes of unfair-dismissal regulations is
to protect the weaker party in this question against hardship resulting from unfair
termination10•
However there are certain stages that need to be addressed when determining whether
a dismissal is summarily and these are concerned with establishing the individuals
eligibility for protection ,showing that a dismissal has taken place and determining the
effective date of termination while looking at the reason for the dismissal and finally the
question of reasonableness.
Therefore employment law is concerned with the relationship existing between
employers and their employees and this employment relationship is governed principally
by the contract of employment between the employer and his employee. The rights and
responsibilities of employees are derived from this contract and also the various Acts
which Jay down employment standards. The contract of employment may be written or
unwritten, its main terms may have been the subject of express agreement between
the parties or they may be implied from the surrounding circumstances such as
collective agreements with Labour Unions, works or office rules, custom and practice at
the work place. Where either party contravenes any of the terms of their contract, the
other party can seek redress by suing for breach of contract and will recover damages
for any consequent losses suffered. The general of law of contract therefore have a
very strong bearing on employment contracts11•
Summary dismissal is the situation when an employee is dismissed from their
employment, forced to resign, sacked in an unreasonable manner by their employers.
This situation occurs when there is opposing opinions, since employers and employees
hold different interests, conflicts can arise in employment relations but so far conflicts
can be accommodated.
10 The Modern Law Revision (n I) I. 11Freedland, M (n5)2.
4
Therefore if managers can reconcile the conflicts and employees are able to recognize
others' interest in order to reach compromise, there will be no summary dismissal. An
employment relationship is structured from managers and their employees, thus one of
them has to make an adjustment in order to resolve the conflicts. Otherwise if there
wasn't any change in the organization conflicts may lead to summary dismissal. Overall
these value framework provide a wide range of different perspectives of each
stakeholder; once understood different values of each side, management can make
decisions that cannot only satisfy employees, unions, states but benefit the company.
Therefore summary dismissal will be least likely to happen in those organizations that
make good use of these value framework12.
Labour relations in Uganda are governed by the 1995 Uganda Constitution as the
supreme law, the Employment Act No.6 of 2006, the Labour Unions Act No. 7 of 2006
and providing for the right to form or belong to a Trade Union as enshrined in Article 29
of the 1995 Constitution of Uganda, the Labour Disputes(Arbitrations and Settlement)
Act No. 8 of 2006 which provides for the resolution of labour disputes, Employment
Regulations 2011, National Employment Policy for Uganda 2011, Occupational Safety
and Health Act 200613•
Today summary dismissal is provided for under section 69(3) as the dismissal where
the employee has by his or her conduct indicated that he or she fundamentally broken
his or her obligations arising under the contract of service which shall be justified14• In
the case of John Elatu v Uganda Airlines Corporation (1984) HCB 40Mayindo J,
as he held to the effect that summary dismissal is dismissal without notice. At common
law, to justify such dismissal the breach of duty must be a serious one, a breach
amounting in effect to a repudiation by the servant of his obligation under the contract
of employment such as disobedience of lawful instructions, misconduct, drunkardness,
immorality, assaulting fellow workers, incompetence and negligence15• In summary
12 Oxford Journal of Legal Studies Vol.27 No.4 (winter, 2007) PP. 633-657 published by Oxford University Press. 13 Ministry of Gender, Labour and Social Development website. 14 Employment Act 2006 of Uganda. 15 John Elatu V Uganda Airlines Corporation [1984] HCB No.40 at page 10.
5
dismissal the employer gives no notice but in termination he must give notice or pay in
lieu of notice.
As there was increased number of claims related to employment matters and disputes
between employers and employees, this channeled the establishment of a tribunal
known as an industrial court to adjudicate labour claims. An industrial court refers to a
tribunal with statutory powers to adjudicate employment related matters and disputes
between employers and employees. Currently industrial courts are established under
section 7(1) of the Labour Dispute (Arbitration and Settlement) Act 2006
which provides that there is an established industrial court. Industrial court has
jurisdiction to hear labour dispute claims and labour dispute references. However the
industrial court is not a court of first instance thus cases are first heard by the labour
officer by way of mediation or conciliation, in other words the industrial court has no
original jurisdiction. The quorum in a labour dispute is constituted by five honorable
members that is to say two judges and 3 panelists16•
The holding in the case of Barclays Bank of Uganda v Gofrey Mubiru SCCANo.9
of 1998 at page 17was cited with approval by Tsekoko, JSC where the learned judge
stated:" ..... .! understand dismissal without notice to mean that the respondent could be
dismissed without being heard if he breached the contract conditions, or if he was
found guilty of unsatisfactory conduct ............. 'm.
In summary dismissal court is required to investigate whether the circumstances of the
alleged misconduct justified a summary dismissal. Barclays Bank of Uganda Ltd v
Godfrey Mubiru (supra) Tsekoko JSC referred to chitty on contract 261h Ed volume 2
at page 824 paragraph 3973 where under the heading MISCONDUCT, the book is to the
effect that where the employee is guilty of sufficient misconduct in his capacity as an
"Labour Dispute (Arbitration and Settlement) Act 2006. 7 Barclays Bank of Uganda Ltd V Godfrey Mubiru [1998] SCCA No.9 at Page 17.
6
employee, he may be dismissed summarily without notice and before the expiration of a
fixed period of employment but the right and fair procedure must be followed18•
1.2 Statement of the Problem
Most employees have been summarily dismissed by their employers in their contract of
service without being given a fair hearing and following the procedures set down by the
law which has led to the concept of summary dismissal in employment contract.
However, there exists certain misconduct which is committed by the employee contrary
to the terms and conditions which the employer expressly prohibits in the general code
of practice in the contract of employment for instance; misappropriation of funds or
property, gross negligence, absence from work, disobedience of lawful orders, breach
of the implied duty of faithful service and fidelity, theft of the employer's property
among etc. Much as the law is very clear that empowers the employer to summarily
dismissed his or her employee at any time for any justified misconductas per section
69 (3) of the Employment Act 2006, this does not mean that the employee should
be denied a fair hearing, in other words the employee should be accorded a chance to
defend his or her case before the employer together with any person of the employee's
choice present during the explanation se(.1:ion 66, this is to the effect that right to a
fair hearing provided for under article 28 is a non derogable right under artide 44 of
the 1995 Uganda Constitution. Therefore this study attempts to analyze the law on
summary dismissal and the available remedies that can be awarded to an aggrieved
employee in the e)(ercise of summary dismissal procedure in termination of employment
:ontracts.
8 l3arc;ays Bank of Uganda V Mubiru (n17)7, Tsekoko JSC reterred to Chitty on Contracl26'" Ed Vol.2 at pagc·824 mragraph 3973.
7
1.3 Objectives of the study
1.3.1 General Objective
The general objective of the study is to analyze the law on summary dismissal and the
available remedies to an aggrieved employee in termination of an employment contract
in Uganda.
1.3.2 Specific Objectives
i. To explore the concept of summary dismissal in employment contracts in
Uganda.
ii. To critically analyze the law and procedure that govern summary dismissal in
Uganda.
iii. To critically analyze the rights and remedies of an employee who has been
summarily dismissed in Uganda.
iv. To make appropriate recommendations and findings on the study in Uganda.
1.4 Research Question
i. What is summary dismissal in employment contracts in Uganda?
ii. What are the laws and procedures that govern summary dismissal in Uganda?
iii. What are the rights and remedies of an employee who has been summarily
dismissed in Uganda?
iv. What are the appropriate recommendations, findings and conclusions on the
study in Uganda?
8
1.5 Scope of the study.
1.5.1 Content/subject scope
Conceptually, this study focuses on the law of summary dismissal and available
remedies to an aggrieved employee who has been summarily dismissed in termination
of employment contract.
1.5.2 Geographical scope
The study based on the Human Resource Manual of Marie Stapes, Lira Uganda which
was considered by the industrial court in the resolution of a Labour Dispute arising from
summary dismissal of an employee, this scope was chosen because of easy access to it.
1.5.3 Time scope
This study was conducted for five months and it reviewed the 1-year time series data
from 2017 to 2018 in Uganda as a result of an increased number of claims of summary
dismissal of employees by their employers in their contract of service.
1.7 Significance of the study
The study carefully focuses on the laws in practice with regard to the concept of
summary dismissal. It is hoped that the study highlights the circumstances that justifies
summary dismissal, the procedures to be followed on summary dismissal and the
available remedies to an aggrieved employee, this study will increase body of
knowledge in the level of protection given to an employee who is summarily dismissed,
this research will also serve as a yardstick for further research and documentation on
the understanding of summary dismissal in termination of employment contract, this
study will also contribute to the new concept of summary dismissal and it is important
for the researcher in person as a requirement for attaining LLB qualification at Kampala
International University.
9
1.8 Research Methodology
The data is acquired using doctrinal method. This is research into law and legal
concepts, the sources of data used is primary source which include case laws, statutes,
rules, and other forms of legislation. It also include references to secondary literature
such as texts, journal, articles, government reports policy documents, media reports, as
well as internet resources if any is relevant to this research with the view of acquiring
sufficient information for purposes of the research.
1.9 literature Review
The study reviewed literature from various scholars on the major variables of the study
in order to collect sufficient information for better conceptualization of the concept of
summary dismissal. Literature from text books, journals, articles, E-resources (online
resources), internet sources among others if any.
According to Stuart Rudner 2019, it is to the effect that employers have the right
to terminate an employee's employment at any time without cause as long as they
provide the employee with reasonable notice of termination or reasonable pay in lieu
thereof. If the contract of employment contains a properly drafted termination clause,
then that will establish the employer's obligation which can be as little as legislated
minimums, and in most cases there is no such contractual provision and the employee
will be entitled to "reasonable notice"19• This literature enabled the researcher to
analyze the law on summary dismissal in Uganda and whether the right to hire and fire
(at will-employment)the employee at will by the employer is good law in Uganda.
However the article has not stipulated those circumstances where the employer is
entitled to dismiss the employee with or without notice as it is stated in Laurie v
19 An article on summary dismissal published in The Lawyers Daily on Tuesday, May, 14th, 2019 at 8:43am published by www.academia.
10
Fariburn 2018and as explained at page 354 of Selwyn's Employment Law 11th
edition20•
In my opinion, the concept of "at will-employment" which means the employer can
terminate the employees' Contract of Employment at any time, for any cause with or
without notice is no longer good law because there are remedies for employees where
the employer did violate the employees' rights of fair hearing including not specifically
stating particulars of the ground for Summary Dismissal, according inadequate time to
offer defense, etc or broke the contractual terms. In Uganda, this concept of 'at will
employment' is not relevant because section 69(3) of the Employment Act 2006 is
to the effect that an employer is entitled to dismiss the employee and the dismissal is to
be justifiable.
According to Tolley's Employment Handbook, termination without justifiable
reasons amount to unlawful dismissal and the employee is entitled to be given a fair
hearing before termination of his or her contract. Dismissal and termination may be
without hearing or notice which includes a dismissal under section 69(1),
Employment Act 2006meaning a gross misconduct or breach which fundamentally
breaches the employment contracts. Common law doctrine requires that the employer
should give the employee a notice of at least one week for employment period lasting
from one month to two years and then one extra week for an additional year above two
years that the employee works up to a maximum of 12 weeks. Therefore this make the
employer liable to pay the summarily dismissed employee the losses that include his/her
notice period including any benefits or pay rises that he or she was entitled to21• The
literature guided the researcher in analyzing the rights of an employee whose dismissal
was unjustified.
In my view, I partially agree with the statement though the writer did not
specificallygive the reasons which justify Summary Dismissal as in Employment Act of
Uganda, 2006. It would also appear that hearing before a competent authority that is
20 Laurie v Fariburn [20 18] stated at page 354 of Selwyns Employment Law II"' Edition. 21Tolleys Employment Handbook Vol. I by Elizabeth Slade published by LexisNevisButterworths 1978.
11
well constituted is a mandatory requirement of fair hearing prior to Summary Dismissal
of an Employee.
According to Pitt's Employment Law, it would appear in the circumstances that
where there is a contract or organization that permits summary dismissal for certain
misconduct, Summary Dismissal would be justifiable if such acts are dishonestly
committed by the employees which position is I agree with, however damages for
unlawful dismissal are at the discretion of court. Summary dismissal in termination of
Employment Contract is a discovery of the judges however it is not included in the
contract laws, it is based on the principle that employees are paid wages for the work
that they do therefore if they do not work they should not be paid. The provisions in
the summary dismissal of an individual explain that an employee should only be
dismissed without notice under three situations, and the first one is if the employee has
not completed one month since he started to work for the employer, the second one is
if the terms of the contract have the provisions for dismissal without notice, and the
third one is when an employee act in a manner that acts to betray the confidence and
trust that the employer had placed in him. It should be noted that the period of notice
before a dismissal is usually written down in the contract should be a minimum of a
week and in case the contract does not state the notice period then the common law
doctrine is applied22•
In my opinion, I would like to diverge a bit from the writers suggestion that it is the
duty of the employer to provide for the employee section 40 of the Employment
Act and where the employer fails to provide work for the employee, the employee is
entitled to be paid wages during that time but not to dismiss the employee section 41
of the Employment Act.
According to Ojijo Pascal in his Article stated that under summary dismissal, an
employer is required before reaching a decision to dismiss an employee on grounds of
misconduct (or poor performance) to explain to the employee in a language the
22 Pitt's Employment Law, P.H G, published by Sweet & Maxwell2016.
12
employee may be reasonably expected to understand the reason for which the
employer is considering dismissal. The employee is entitled to have a person of his or
her choice present during this explanation, the employer is then required to give the
employee and his or her representative time to respond to the reasons given and must
hear and consider the representations which the employee and his representative make
on the grounds of misconduct23.This literature helped the researcher in conceptualizing
the law and procedure to be followed on termination on employment.
I agree with the view of Ojijo Pascal that the employer has to explain to the employee
in the language the employee understands best as section 66 of the Employment Act
provides.
However, the writer never defined what is summary dismissal and the examples of
conducts that warrant summary dismissal in employment contract.
Chambers and Partners, stipulated that the law provides that summary dismissal is
the termination of an employment contract by the employer without giving notice or
giving less notice than that prescribed by the law or contract. Summary dismissal is
justified when the employee has by his or her (mis)conduct fundamentally broken his or
her contractual obligations, the law provides reasons that are considered to be unfair to
justify a summary dismissal24• This literature also guided the researcher on
understanding acts of an employee which amounts to gross misconduct.
I agree with the definition of summary dismissal that was advanced by the chambers
and partners in their online article according to section 69(3), Employment Act,
however they never explained those circumstances that the law provides to be unfair to
justify a summary dismissal.
Textbook on Employment Law, the employer should follow the procedure for
termination even in cases where an employee is caught red handed committing a
serious misconduct for instance stealing. Notwithstanding the serious misconduct of the
230jijo Pascal in his article Legal Regulation for employing a local or a foreigner in Uganda published by Academia on 11"' March2019. 24 Chambers and Partners in an online article accessed os•h March 2019.
13
employee and the evidence available, the law requires that procedures outlined under
the law must be followed, failure to follow the procedure will amount to summary
dismissal, meaning an employee is terminated without being availed of an opportunity
to defend him/herself before a fair disciplinary committee25• This literature helped in
guiding the researcher in analyzing the law and procedure on summary dismissal in
Uganda.
However, the writer did not outline the legal and institutional framework that is
responsibility for the enforcement of the law and procedures to be followed by the
employer during the exercise of summary dismissal.
Selwyn's Law of Employment, provides that summary dismissal has a strong
measure to be justified only in the most exceptional circumstances. There are a number
of well recognized grounds on which an employer may dismiss an employee summarily
which include gross misconduct, wilful refusal to obey a lawful and reasonable order,
gross neglect, dishonesty, and so forth. Whether the conduct in question is serious
enough to warrant summary dismissal is always a question of fact in each case and the
standards to be applied are those of the current morals not those which have become
somewhat outdated26• The literature helped the researcher in analyzing the
circumstances justified for summary dismissal.
However, the literature didn't stipulate the right to a fair hearing that the employee has
got of which the employer before reaching any decision to dismiss an employee to
consider any representations which the employee on the grounds of misconduct or poor
performance and the person chosen by the employee if any.
Butterworth's Employment Law Handbook, which is to the effect that nor shall
the employer dismiss or otherwise punish any such worker except for misconduct not
connected with the dispute. The employer is authorized to terminate the service of his
employees after giving notice or paying salary for one month in lieu of notice but where
an order of discharge passed by an employer gives rise to an industrial dispute then the
25 Textbook on Employment Law, Emir, Oxford University Press 2010. 26 Selwyn's Law of Employment, Emir, Oxford University Press 2014.
14
form of the order by which the employee's services are terminated would not be
decisive27• The literature helped the researcher to analyze the circumstances where an
employee can claim for unjustified employment termination.
In my own opinion, I agree with the statement of the writer however, the literature
didn't analyze the laws and procedures that the employer must follow while exercising
summary dismissal which include a right to a fair hearing as section 66 of the
Employment Act stipulates.
According to Bower.l, the following conducts shall be deemed to be misconduct;
theft, fraud, willful damage to employer's goods, habitual absence without leave for
more than 10 days, strike at work place, habitual negligence, frequent repetition of any
act or omission for which a fine may be imposed to a maximum of 2% of the wages in
a month28• However, any fines imposed on the employee must have been anticipated
by the effect of the relevant Employment Contract.
The literature didn't analyze what the concept of summary dismissal is all about by
defining what is meant by summary dismissal and how the law protects both the
employer and the employee for instance the notification and the hearing of the
employee by the employer.
The literature discussed above helped in the understanding and in the determination of
various conducts that warrant Summary Dismissal
27 Butterworth's Employment Law Handbook authorized by Peter Wallington in 1979 referenced to Industrial Relations and Employment Law by Michele Tiraboschi, 1971. 28 Boer, J. (Ed) 'Blackstone's Employment Law and Practice' Oxford University Press, Oxford (2008).
15
1.10 Chapterization
The study is divided into five (5) chapters:
Chapter one (1): contains the background, statement of the problem, purpose of the
study, objectives of the study, research questions, scope of the study, significance of
the study, research methodology, literature review and chapterization.
Chapter two (2): contains the concept of summary dismissal in employment contracts
which includes the introduction, rationale, what warrant summary dismissal, other
circumstances justifying summary dismissal, distinction between summary dismissal and
summary termination and notification and hearing before termination or dismissal.
Chapter three (3): contains the law and procedure on termination of employment
contract which include the introduction, legal frame work, institutional frame work and
decided cases.
Chapter four (4): contains the introduction, rights and remedies to an employee who
has been summarily dismissed.
Chapter five (5): contains the appropriate recommendations, findings and conclusions
on the study.
16
CHAPTER TWO
THE CONCEPT OF SUM MARRY DISMISSAL IN EMPLOYMENT CONTRACTS IN
UGANDA
2.0 Introduction
The word "summary" is synonymous with "instant", Employees guilty of gross
misconduct amounting to a serious breach of their contracts of employment are liable
to be summarily dismissed that is to say dismissed without the benefit of the notice to
which they would otherwise be entitled. Allegations of gross misconduct should be
investigated thoroughly before a decision is taken to dismiss the employee in
question29 •
After the industrial evolution in 1960's, the employees were being dismissed from their
employment contracts by their employers without just cause or any substantial reason
that justifies their dismissal, the concept of summary dismissal came in place so as to
protect the weaker party from unfair employment policies in their contracts. This
ccncept is to the effect that for an employee to dismissed without or with a lesser
notice than that an employee is entitled to, there must be a serious breach of the
fundamental clause in the employment contract by the employee. This does not mean
that the employee is not entitled to a hearing so as to know the reasons for his or her
dismissal, the employer must justify those various conducts committed by the
employee30•
Summary dismissal means the termination of an employee's employment without notice
or. pay in lieu of notice on the basis of the employee's gross misconduct. For summary
dismissal to be justified, the actions of the employee must be in fundamental breach of
contract or seen as undermining the duty of trust and confidence between employer
and employee, to the extent that the employer is no longer required to retain the
employee in employment or be bound by any of the terms of the contract. Therefore
29 Oxford Journal of Legal Studies Vol.27 No.4 (winter 2007), PP. 633-657 published by Oxford University Press. 30Freedland, M. 'Constructing Fairness in Employment Contracts' Industrial Law Journal (2007) at page 136.
17
care should be exercised as summary dismissal will be an unfair dismissal if the correct
procedure are not followed31•
A minor or inadvertent breaches of contract will not be sufficient to justify summary
dismissal even if the employer's contract contains a clause that purports to authorize
the employer to dismiss without notice for any type of breach of contract.
In some cases, it is not necessary for there to be an individual act that amounts to
gross misconduct for summary dismissal to be fair and it is quite possible for a series of
acts demonstrating a pattern of conduct to be of sufficient seriousness to undermine
the relationship of trust and confidence between the employer and the employee. There
is no authority to suggest that there must be a single act amounting to gross
misconduct before summary dismissal would be justifiable or that it is impermissible to
rely upon a series of acts, none of which would, by themselves justify summary
dismissal32•
An act of gross misconduct on the part of the employee will entitle the employer to
regard the contract as at an end and so dismiss the employee without notice. This is
because the law recognizes the right of either party to a contract of employment to
treat the contract as terminable without notice by reason of the conduct of the other
party which is in fundamental breach of contract.
It is not open to an employer to agree to terminate an employee's employment
summarily with pay in lieu of notice then seek to refuse to honor the payment on
account of a discovery that the employee, while still employed, committed an act of
gross misconduct. In these circumstances, the payment is a debt and the employer
having agreed to it is contractually bound to pay it. This will be the case unless the
contract of employment specifically states that a payment in lieu of notice will not be
31 The Rational Principle of Trust and Confidence authored by Mathew Boyle 27 Journal of Oxford Legal Studies 2007. 32 Bower, J. (Ed) 'Blackstone's Employment Law and Practice', Oxford University Press, Oxford 2008.
18
paid or will be clawed back in the event that it is discovered post-termination that the
employee committed an act of gross misconduct while employed33•
There is no "legal list" of what constitutes gross misconduct entitling an employer to
dismiss an employee summarily, and it is up to each employer to device its own rules
and ensure these are properly communicated to all employees including a clear
statement that an incident of gross misconduct will lead to summary dismissal.
There is no fixed rule defining the degree of misconduct which will justify summary
dismissal. A number of incidents aggravated together can justify the employer
instigating a summary dismissal34•
Employers should ensure that their disciplinary rules give examples of acts which are to
be regarded as gross misconduct. The list of examples should state that it is not all
inclusive but that other offences of similar gravity may be considered gross misconduct,
depending on the circumstances. Behaviors that are likely to justify an employer
dismissing the employee without notice provided a fair procedure is followed include;
gross insubordination, gross neglect of duty, dishonesty, theft, physical violence,
serious bullying or harassment of another employee, fraud falsification of records, wilful
damage to company property among others35•
The effective date of termination in a case of summary dismissal will be the date on
which the employee is informed that his or her employment is being terminated36.
It is paramount for employers to have a clear written procedures and to apply them
consistently in order to be able to demonstrate to an employment tribunal in case it is
challenged that a dismissal was unfair and the employer should abide by the
recommendations contained in their disciplinary code of practice.
33 Tucker, K. (Ed) 'Discrimination in Employment' Sweet & Maxwell, London 2004. 34 Boyle Mathew (n6)3 2007. "Bonino, R. 'ACAS Code of Discipline and Grievances' 32 Company's Secretary Review 5 published in April 2009. 36Freedland, M (n30)20 2007
19
However the employer should always take into account any relevant mitigating factors
when deciding whether or not to dismiss an employee summarily37•
2.1 Rationale
The law does not lean in favor of an employee who is guilty of gross misconduct. It is
to be understood that where the conduct of the employee falls within the category of
gross misconduct, the right to termination is forfeited. It has however remained very
difficult to determine what conduct amounts to gross misconduct. Some employers
have considered any small errors or misconduct of employees to amount to gross
misconduct and to warrant summary dismissal, however courts have always given the
parameters although of course the list can never be exhaustive38•
In the case of Elatu v Uganda Airlines Corporation, Mayindo. J explained summary
dismissal is dismissal without notice and to justify summary dismissal, the breach must
be a serious one amounting in effect to repudiation by the servant of his obligation
under the contract for instance disobedience of lawful orders, misconduct,
drunkardness, immorality, assaulting colleagues, incompetence and neglect39•
Therefore the rationale for the concept of summary dismissal in employment contracts
include the following;
In any claim arising out of termination, the employer must prove the reason(s) for the
dismissal and where the employer fails to do then the dismissal shall be deemed to
have been unfair which is within the meaning of section 71 of the Act40•
The reason(s) for dismissal must be matters which the employer at the time of
dismissal, genuinely believed to exist and which caused him or her to dismiss the
employee41.
37Boninio, R (Ibid) 2009. 38 Jet Speed Air Services v Joan Tumuhirwe [2000] CACA No.l7 39 John Elatu v Uganda Airlines Corporation [1984] HCB No.40. 40 The Employment Act 2006.
20
To ensure that the employer has satisfied the contents of a certificate such as is
referred to in section 61 of the Act and informing the employee of the reasons for
termination of employment shall be taken in to account, section 6842.
Therefore for an employee to be summarily dismissed by his or her employer, the
misconduct that constitute such dismissal must be stated clearly to the employee as per
the case of Mukasa v UCB43•
2.2 What warrant summary dismissal
A dismissal is summary dismissal if the employee's service is terminated without notice
or with less notice than that to which the employee would be entitled under the Act or
under the employment contract. An employee is entitled to dismiss an employee
summarily when the employee has by his or her conduct indicated that he or she has
fundamentally broken his or her obligations arising under the contract of service
section 69 (1) & (3)44. Russell L.J said that the right of summary dismissal is
preserved by the Act as well as under the common law45•
The power to dismiss summarily is exercisable in circumstances where the contract
expressly authorizes summary dismissal. It can also be exercised where the employee is
guilty of serious misconduct, unless the contract precludes the exercise in the
circumstances in question46•
Where the employment contract does not specify the grounds for summary dismissal,
what constitutes serious misconduct for these purposes depends on the nature of the
job in question and the terms of the contract. Certain actions must invariably would be
regarded as a serious misconduct, like deliberately destroying the employer's property,
41Freedland, M (supra). 42 The Employment Act 2006. 43 (1994)1 KALR at page I 04. 44 The Employment Act 2006. 45 Pepper v Webb (1969)2 AllER 216 at page 35. 46 Managerial Law, Vo1.6 Issue 2 authorized by Harman L.J published by MCB UP Ltd.
21
stealing from the employer and gross insubordination as held by Mayindo J in the case
of Barclays bank ltd Uganda v Godfrey Mubiru47•
Often the line is difficult to draw between what misconduct justifies summary dismissal
and what calls at most other penalties.
In Glover v B.L.N Ltd, Kenny J said it is to the effect that it is impossible to define
misconduct which immediate dismissal. There is no fixed rate of law defining the degree
of misconduct which will justify dismissal. What is or is not misconduct must be decided
in each case without the assistance of a definition or a general rule. Similarly all that
one can say about serious misconduct is that it is misconduct which the court regards
as being grave and deliberate. And the standards to be applied in deciding the matter
are those of men and not angels48•
In Carvil v Irish Industrial Bank, in this case, the managing director of a bank
arranged for a carpet for his house to be fitted in his office and bought a new carpet for
his house. He then charged the company about 60% of the price of that new carpet.
It was held that, the misconduct in question usually must have been known to the
employer at the time he decided on the dismissal. That is to say the employer cannot as
a defense to an action for wrongful dismissal to rely on an act of misconduct on the
part of his servant which was unknown to him at the time of dismissal, unless the act is
of a fundamental character as to show a repudiation of the contract of employment by
the servant.
The court over ruled Kenny J's decision that this act constituted misconduct as would
justify his summary dismissal49•
The test of summary dismissal was stated in Laws v London Chronicles Ltd,
whether the conduct complained of is such as to show the servant to have disregarded
the essential conditions of the contract of service.
47 SCCA No.9 of 1998 at page 20. 48 [1973] IR 388 at page 30. 49 [1959] IWRL 698
22
A single isolated act can constitute sufficient cause to justify instant dismissal like
fraudulent conduct or wilful disobedience of an order which was lawful and reasonable.
One act of disobedience or misconduct can justify dismissal only if it is of a nature
which goes to show in effect that the servant is repudiating the contract, more over the
order must be within the scope of the employment. A worker hired to perform one kind
of task cannot be compelled to do something entirely different, for instance a person
hired in an executive capacity cannot ordinarily be expected to spend his working hours
performing manual labour as explained in the case of Price v Movat [1862] CB 508.
It depends very much on the circumstances of each case whether the instructions given
are reasonable as held by Court of Appeal in Laws v London Chronicles Ltd50•
Where the contracts sets out the grounds for immediate dismissal, the court may
conclude that those grounds supercede and displace the common law right of summary
dismissal.
In the case of Glover v B.LN Ltd, the plaintiff contract enumerated the grounds and
circumstances in which he could be instantly dismissed.
Justice Walsh stated to the effect that because of the express provisions of the clause,
no implied term is to be read into the contract that the plaintiff might be summarily
dismissed for misconduct. On the contrary, the clause expressly provides that the
plaintiff could not be validly dismissed for misconduct unless it was serious misconduct
and was of a kind which, in the unanimous opinion of the board of
directors ....... injuriously affected the reputation, business or property of the companies.
It was held that, the test for whether his dismissal was lawful was not whether he had
been guilty of serious misconduct but whether he committed acts of misconduct as
characterized by the above clause in his contract51•
50 [1959] IWLR 698 CA. 51 Grover v B.L.N Ltd (supra).
23
2.2.1 Other circumstances justifying summary dismissal include;
Absence from work where an employee who initially absconds himself from work acts
contrary to the contract of continuing obliges to justify dismissal as in the case of E.A
trading v Deth52•
Disobedience where a refusal by the employee to comply with an employer's orders or
willfully disobey him or any lawful and reasonable order may be justification for
summary dismissal in the case of Olocho v City of Nyandowa53,
Gross negligence when the employee fails to meet deadlines especially negligence that
leads to adverse consequences as per the case of CFR Oman v E.A railways54•
Breach of the implied duty of faithful service and fidelity and misappropriation of funds
or property in the case of Kiggundu v Barclays Bank Ltd of Uganda55•
2.3 Distinction between summary termination and summary dismissal
The employment Act 2006 provides for a clear distinction between summary
termination and summary dismissal.
Section 69 (1) provides that summary termination shall take place when an employer
terminates the service of an employee without notice or with less notice than that to
which employee is entitled by any statutory provision or contractual term56•
Section 69 (3) provides that an employer is entitled to dismiss summarily and the
dismissal shall be termed justified, where the employee has by his or her conduct
indicated that he or she has fundamentally broken his or her obligations arising under
the contract of service57•
52 [1907-1910]I.U.L.R22. 53 [1966] E.A 467. 54 [1972] E.A 403. 55 [1973] E.A 569. 56 The Employment Act (supra). 57 The Employment Act (ibid).
24
In any claim arising out of termination, the employer shall prove the reason(s) for the
dismissal and where the employer fails to prove the reason(s) for the dismissal, the
dismissal shall be deemed to have been unfair. The reason(s) for the dismissal shall be
matters which the employer at the time of dismissal, genuinely believed to exist which
caused him or her to dismiss the employee.
In the case of Barclays Bank Ltd v Godfrey Mubiru, summary dismissal was defined
to mean the immediate dismissal of an employee by the employer without notice or
with less notice in situations where an employee is guilty of sufficient misconduct or he
or she has committed a repudiatory breach to the contract of employment which
warrants his summary dismissal without notice and before the expiry of a fixed period
of the employment contract58• And this definition is in line with the definition that
section 69(3) stipulates59•
The general rule is that if an employee does anything which is incompatible with
providing faithful service, such employee may be dismissed summarily without notice as
it was in the case of Laws v London Chronicles ltd60•
References made to several cases reveal that summary termination has been on the
basis of insubordination, breach of confidence in disclosing trade or other secrets,
taking secret commission, disrespecting of fellow workers, drunkardness and among
others61•
Section 69 (3) is to the effect that an employer will not be required to give notice
when summarily dismissing a contract of service, therefore a dismissal from
employment occurs when an employee is discharged from employment for variable
misconduct. It is not possible to enumerate all the grounds on which a dismissal can be
58 Barclays Bank v Mubiru (supra). 59 The Employment Act (supra). 60 [1959] IWLR 698. 61 Managerial Law vol.6 (ibid).
25
based, but the circumstances that do not form good grounds of dismissal or termination
are clearly enumerated in section 75 of the Employment Act62•
Summary termination has been justified in cases of a strike, dishonesty, the taking of a
secret commission in breach of the employees duty of fidelity, gross negligence, a
series of incidents of intoxification and willful disobedience of orders such as refusal to
attend meetings, Blyth v Scottish liberal club (1983) IRLR and the grounds for
justification for summary dismissal are clearly spelt out in the case of Barclays Bank
Ltd v Godfrey Mubiru63•
2.4 Notification and hearing before termination/dismissal
Notwithstanding any other provision that the Act provides for, an employer before
reaching any decision to dismiss an employee is oblige by the law to explain to the
employee in the language the employee may be reasonably expected to understand on
the grounds of misconduct or poor performance or any circumstances that may lead to
a dismissal of an employee, the reason for which the employer is considering dismissal
and the employee is entitled to have another person of his or her choice during this
explanation section 66(1)64•
This provision is further supported by Ojijo Pascal in his article Legal Regulations
which is to the effect that under summary dismissal, an employer is required before
reaching a decision to dismiss an employee on grounds of misconduct or poor
performance to explain to the employee in a language the employee may be reasonably
expected to understand the reason for which the employer is considering dismissal, the
employee is entitled to have a person of his or her choice present during this
explanation, the employer is then required to give the employee and his or her
representative time to respond to the reasons given and must hear and consider the
62 The Employment Act (ibid). 63 Barclays Bank V Mubiru (ibid). 64 The Employment Act (ibid).
26
representations which the employee and his representative made on the grounds of
misconduct65•
Section 66 (2) is to the effect that an employer shall before reaching any decision to
dismiss an employee hear and consider any representations which the employee on the
grounds of misconduct or poor performance and the person if any chosen by the
employee66•
Section 66 (3) is to the effect that the employer shall give the employee and the
person if any chosen a reasonable time within which to prepare the representations
referred to 67•
Section 66 (4) is to the effect that irrespective of whether any dismissal which is a
summary dismissal is justified or whether the dismissal of the employee is fair, an
employer who fails to comply with the law is liable to pay the employee a sum
equivalent to four week's net pay68•
A complaint from the employee alleging failure on the part of the employer to comply
with the law may be joined with any complaint alleging unjustified summary dismissal
or unfair termination and may be made to a labour officer by an employee who has
been dismissed and the labour officer shall have power to order payment of a sum
equivalent to four week's net pay in addition to making an order in respect of any other
award or decision reached in respect of the dismissal section 66 (5), a complaint
made by the employee shall be made within three months after the date of dismissal,
however section 66 of the Act does not apply where a dismissal brings to an end a
probationary contract69•
650jijo Pascal in his article Legal Regulation for employing a local and a foreigner in Uganda published by Academia on ll'h March 2019. 66 The Employment Act (ibid). 67 The Employment Act (ibid). 68 The Employment Act (ibid). 69 The Employment Act (ibid).
27
CHAPTER THREE
THE LAW AND PROCEDURE ON SUMMARY DISMISSAL IN UGANDA
3.0 Introduction
Most employers won't relish the idea of having to fire and hire an employee, however
sometimes an employee's action (or inactions) may be so serious that the decision to
terminate the employee's employment might not appear to be a difficult one. Like every
other aspect of employment law, a lawful process must be followed, even for very
serious behavior where the employer is certain that the conduct occurred.
3.1 Legal Framework
Legal framework is a broad system of rules that governs and regulates decision making,
agreements and laws in an organization, a company or in a country. Below are the laws
that covers organization and functional composition under Labour Department.
3.1.1 The 1995 Constitution of the Republic of Uganda
The Constitution is the supreme law of Uganda. The present constitution was adapted
on 81h October 1995 and its Uganda's fourth Constitution since the country's
independence in 1962.
The primary function of the Constitution is to lay out the basic structure of the
government according to which the people are to be governed. It is the Constitution of
the country, which establishes the three main organs of the government, namely, the
legislature, the executive, and the judiciary.
Since the country's Constitution stands superior to all the laws framed within the
territorial precints of the country, any law enacted by the ruling government has to be
in conformity with the concerned constitution. As such, the citizens would, in, be
28
abiding by not just the law, but also working in sync with the demarcations of the
Constitution laid by the country70•
The Constitution is important as the law governing summary dismissal because it is to
the effect that a person is entitled to a speedy and impartial fair hearing before a court
or a tribunal71• It should be noted that this right is a non derogable and this means that
an employee is entitled to a mandatory fair hearing by the employer before reaching
any decision of dismissing the employer72•
3.1.2 The Employment Act 2006
Employment Act 2006 is an Act to revise and consolidate the laws governing individual
employment relationships, and to provide for other connected matters.
The employment Act gives the interpretation of the basic legal concept which are
provided under the Labour Department and it's provided under part one of the Act and
it is comprised of the following73•
Part two of the Act provides for the general principles under labour law and the code of
practice in the employment sector and these include principles against forced labour
where no person shall use or assist any other person, in using forced or compulsory
labour, discrimination on the basis of race, colour, sex, religion, national extraction,
social origin, political opinion and tribe in employment, and it is the duty of the Minister,
a labour officer and industrial court to promote and guarantee equality of opportunity
for worker in Uganda74•
Part three of the Act provides for the administration and jurisdiction, and it is to effect
that it is the responsibility of the Directorate of Labour acting under the authority of the
Minister, as well as the local authorities as may be required under the Local
70 The 1995 Constitution of the Republic of Uganda. 71 Article 28 of the Constitution. 72 Article 44. 73 Sections I, 2, 3 & 4 of the Employment Act 2006. 74 Sections 5, 6 & 7 ofthe Act.
29
Governments Act to administer and the appointment of officers, and the inspection of
labour imposed on any person by the Ace5.
Part four of the Act provides for the employment relationship under a contract of
service which may be made orally or in writing provided by the Act unless otherwise
and also the termination of employment contract which include the death of the
employer and insolvency of the employer, repatriation of an employee recruited for
employment at a place which is more than one hundred kilometers from his home at
the expense of the employer to the place of engagement, notwithstanding, a child
under the age of 12 years shall not be employed in any business, undertaking or work
place76•
Part five of the Act provides for Wages and Related notices, in which it include duty of
employer to provide work, entitlement to wages, death of an employee, permitted
deductions, repayment, preferential claims, union dues, and pay statements77•
Part six of the Act provides for the rights and duties in employment which weekly rest
by the employee, pay calculation, length of working hours per week, annual leave and
public holidays, sick pay, maternity leave, paternity leave, notice periods, written
particulars, and certificate of service78•
Part seven of the Act provides for disciplinary penalties, suspension, complaint by
employee, termination, notification and hearing before termination, probation contracts,
proof of reason for termination. Summary dismissal, unfair termination, representation,
industrial action, remedies for unfair termination, compensatory order and settlement of
termination cases79•
75 Sections 8-22 ofthe Act. 76 Sections 23-39. 77 Sections 40-50. 78 Sections 51-61. 79 Sections 62-81.
30
Part eight of the Act provides for continuity of Employment including treatment of
periods and seasonal employment80•
Part nine of the Act include severance allowance, when severance is due, no severance
allowance under summary dismissal, payment of severance allowance, bonus and other
payments81•
Part ten of the Act provides for remedies, jurisdiction and appeals, criminal liability,
penalties, regulations, savings and transitional82•
SCHEDULE 1 of the Act provides for disciplinary code, including the rules, procedures
and penalties.
3.1.3 EMPLOYMENT REGULATIONS OF UGANDA, 2011
Employment regulations of 2011 is responsible for labour codes, general labour and
employments.
Part one contains the preliminary and Part two contains the administration and
jurisdiction.
Part three contains labour advisory board and Part four contains operational guidelines
of employment services.
Part five contains recruiters and recruiting and Part six contains contract of service.
Part seven contains special categories of employment and Part eight contains sickness,
injury and illness.
Part nine contains termination of services and Part ten contains miscellaneous.
3.1.4 The Labour Disputes (Arbitration and Settlement) Act, 2006
Labour dispute means any dispute or difference between an employer or employers and
an employee or employees, or a dispute between employees; or between Labour
80 Sections 82-86. 81 Sections 87-92. 32 Sections 93-100.
31
Unions, connected with employment or non-employment, terms of employment, the
conditions of labour of any person or of the economic and social interests of a worker
or workers.
Part one the Act provides for interpretation of the words used in the Act83•
Part two of the Act provides for dispute resolution and settlement where labour disputes
are to first be referred to labour officer and the labour officer is required to react to
report of labour dispute within two weeks then there after the labour officer may refer
dispute to industrial court, an industrial court may make decisions and award, but
where the industrial court is unable to reach a common decision, the matter shall be
decided by the Chief Judge. This same part also provides for the power of the labour
officer84•
Part three of the Act provides for the essential services under which there is information
about essential services, designation of essential services and prosecution of any
offence under the Act with the written consent of the Director of Public Prosecution85•
Part four of the Act provides for collective agreements, where collective agreements are
to be registered and terms of collective agreement to be part of contract of
employment86•
Part five of the Act provides for miscellaneous of which there is rules of procedure for
industrial court, remunerations, allowances and other expenses and regulations87•
3.1.5 LABOUR DISPUTES (ARBITRATION AND SETTLEMENT) (INDUSTRIAL
COURT PROCEDURE) RULES, 2012
This is a statutory instruments No.8 of 2012, with part having preliminary including the
title and interpretation.
83 Sections I & 2 ofthe Labour Dispute (Arbitration and Settlement) Act 2006. 84 Sections 3-32 of the Labour Dispute. 85 Sections 33-37. 86 Sections 38 &39. 87 Sections 40-44.
32
Part two gives reference to a labour dispute to the industrial court, reference of a
labour dispute, receipt of a reference and memorandum of each party.
Part three providing for hearing of a labour dispute, extension of time, registrar to fix
hearing, legal representation, hearing a labour dispute, witness, examination and cross
examination with evidence.
Part four provides for procedure of industrial court in essential services disputes, notice
of withdrawal of labour, reference of collective withdrawal of labour to the court, filing
of reference with registrar, memorandum of each party, setting a hearing date
expeditious hearing.
Part five provides for decisions and awards of the court
Part six provides for appeals and part seven has miscellaneous.
3.2 Institutional Framework
Institutional framework refers to a set of formal organizational structures, rules and
informal norms for service provision and such a framework is the precondition for the
successful implementation of other sanitation and management intervention tools
needed to be considered in particular. Below are the various institutional framework in
implementing labour law.
3.2.1 Ministry of Gender, labour and Social Development
Ministry of Gender, Labour and Social Development is a government ministry with
responsibility to empower communities in diverse areas. The Ministry promotes cultural
growth, skills development and Labour productivity while promoting gender equality,
Labour administration, social protection and transformation of communities.
The Ministry came into force by a Constitutional requirement of the 1995 Uganda,
Chapters 4 and 16 which mandates government to empower communities to harness
their potential through skills development, labour productivity and cultural growth. The
33
Constitution advocates for protection and promotion of fundamental rights of the poor
and other vulnerable groups.
It is comprised of the Social Development Sector (SDS) that promotes issues of social
protection, gender equality, equity, human rights, culture, decent work conditions and
empowerment for different groups such as women, children, the unemployed youth,
internally displaced persons and persons with disabilities.
SD is the lead agency for this sector and is charged with the development and
implementation of the social development investment plan (SDIP) with the mandate to
empower communities to harness their potential through cultural growth, skills
development and labour productivity for sustainable and gender responsive
development.
The MGLSD operates through a structure comprising two Directorates: Gender, Culture
and Community Development; and Labour, Employment and Industrial Relations. The
Directorate of Labour comprises two Departments: Labour, Employment and Industrial
Relations; and Occupational Safety and Health.
Mandate of the Ministry;
i. Empower communities to appreciate, access, participate in, manage and demand
accountability in public and community based initiatives,
ii. Protect vulnerable persons from deprivation and livelihood risks,
iii. Create an enabling environment for increasing employment opportunities and
productivity for improved livelihoods and social security for all, especially the
poor and the vulnerable,
iv. Ensure that issues of inequality and exclusion in access to services across all
sectors and at all levels are addressed,
v. Improve performance of SD institutions to coordinate and implement the SDIP at
various levels.
34
Ministry of Gender, Labour and Social Development is located at Kololo, having Hon
Janat Balunzi Mukwaya as the Minister of Gender, Labour and Social Development.
The vision of the Ministry is a better standard of living, equality and social cohesion for
all especially the poor and the vulnerable and its mission is to create an environment for
social protection and social transformation of communities.
Labour Inspection Structure and Organization
MGLSD is the lead Ministry of responsible for labour administration in the country.
The Directorate of Labour, Employment and Occupational Safety and Health performs
most of the labour administration functions. It is divided in to three departments each
of which is headed by a Commissioner. These are the Department of Labour, Industrial
Relations and Productivity, Department of Occupational Health and Safety, the
Department and of Employment Services. The Department of Labour, Industrial
Relations and Productivity is responsible for formulating, implementing and enforcing
labour policies and laws related to working conditions. Inspection of Occupational
Safety and Health issues falls under the responsibility of the department of occupational
health and safety88•
3.2.2 A Labour Officer
A Labour Officer is any individual appointed or deemed to have been appointed by the
designate minister to carry out labour matters affecting workers in various workplaces.
For instance the Deputy Labour Commissioner, an assistant Labour Commissioner and a
Labour Inspector.
A Labour Officer is established under the Employment Act 200689•
" Ministry of Gender, Labour and Social Development website. 89 Section 9 (4).
35
Labour Officers also arbitrate between workers and employers on undesirable working
conditions. Much of a labour officer's time particularly at the district level is devoted to
dispute resolution at the expense of labour inspection activities90 •
The Employment Act provides for the appointment of Labour Officers which is to the
effect that there shall be appointed commissioner responsible for the implementation of
the provisions acting under the directions of the Minister. The commissioner shall have
all the powers of a labour officer and every district service commission shall appoint a
district labour officer and such other officers as may be necessary for the purposes of
administering the provisions91.
The Employment Act provides for labour inspection by a labour officer where the labour
officer is empowered to engage in labour inspection which include; securing the
enforcement of legal provisions relating to conditions of work and the protection of
workers while engaged in their work, the supply of technical information and advice to
employers, employees and their organizations concerning the most effective means of
complying with the legal provisions and bringing to the notice of the Minister defects or
abuses not covered by the existing legal provisions92•
A Labour Officer is empowered:-
i. To freely enter and without previous notice at any hour of the day or night, any
work place for inspection,
ii. To enter by day, any premises which he or she may have reasonable cause to
believe to be liable to inspection,
iii. To carry out examination, test or inquiry which he or she may consider necessary
in order to satisfy himself or herself that the legal provisions are being strictly
observed.
90 National Employment Policy for Uganda 2011. 91 Section 9. 92 Section I 0.
36
A Labour Officer shall, where he or she believes that there is a present or imminent
danger to the health or safety of the workers, close the work place without the prior
approval of the commissioner except that the labour officer shall inform the
commissioner within forty eight hours of the closure of the workplace.
A Labour Officer may by order, and after the approval of the commissioner, require an
employee to remedy any defect in the plant layout or working methods which, in the
opinion of the labour officer, constitutes a threat to the health or safety of the workers
and close down a workplace or discontinue any work process if he or she is of the
opinion that that there is imminent danger to the health or safety of the workers,
subject to appeal before the industrial court.
A Labour Officer acting in good faith is not liable for any loss or cause of action that
may arise out of his or her carrying out of the legal provisions93•
A Labour Officer shall resolve any reported matter by agreement between the parties,
involving as much as is practically possible in the negotiations, the workers or the
Labour Union that may be present at the aggrieved party's workplace94•
A Labour Officer also has got powers to investigate and dispose of complaints and any
labour matter before them while stating the reasons for his or her decision on a
complaint95•
A Labour Officer may institute any civil or criminal proceedings before the industrial
court in respect of a contravention or alleged contravention and may prosecute and
appear in his or her own name in respect of the proceedings96•
A Labour Officer shall not place himself or herself in any position that involves a conflict
of interest, section 17 and shall not reveal, during or after the period of his or her
93 Section II. 94 Section 12 (2). 95 Section 13. 96 Section 14.
37
appointment, any manufacturing or commercial secrets or working processes or
confidential information which come to his or her knowledge in the performance of his
or her duties97•
3.2.3 Industrial Court
Industrial Court refers to a tribunal with statutory powers to adjudicate employment
related matters and disputes between employers and employees.
The Industrial Court was first established by the Trade Dispute (Arbitration and
Settlement) Act 1964 Cap 224 which is to the effect that there shall be a standing
industrial court98•
Currently, it is established under the Labour Dispute (Arbitration and Settlement) Act
2006 which provides that there is an established industrial court99•
The Industrial Court is a non-departmental public body under the Ministry of Gender,
Labour and social Department, and their vision states that "Justice for All"100•
The Labour Dispute (Arbitration and Settlement) Act provides that the industrial court
may circuit as frequently as circumstances may make it necessary, such circuits have
been established in Uganda for example Gulu circuit, Lira circuit and many others101•
Industrial Court has jurisdiction to hear labour dispute claims, labour dispute references
under section 5 of the Labour Dispute (Arbitration and Settlement) Act, labour Appeals
under article 50(3) of the 1995 constitution of Uganda where any person
aggrieved by any decision of the court may appeal to an appropriate court102•
The Labour Dispute (arbitration and Settlement) Act provides that an industrial shall
consist of;
97 Section 17 & 18. 98 Section 5 99 Section 7 (1 ). 100 Ministry of Gender, Labour and Social Development website. 101 Section 7 (2). 102 Section 5 of the Labour Dispute Act & article 50(3) of the Constitution.
38
i. Chief Judge who is the head of the station
ii. Deputy Judge who helps the Chief Judge in adjudicating the matters
iii. Independent member who is neutral and helps court to arrive at a decision
iv. A representative of the employer
v. A representative of the employee
And thus the quorum in a labour dispute is constituted by five honorable members that
is two judges and three panelists. Section 10(2) is to the effect that the Chief Judge
and deputy Chief Judge are appointed by the president in the recommendation of the
judicial service commission and shall hold office for a term of five years, and the three
panelists are appointed by the minister103•
The Chief Judge and the Judge shall have the qualifications similar to those of the judge
of the high court, the 1995 constitution of the Uganda which is to the effect that a
person shall be qualified for appointment as a judge of the high court if he or she has
been a judge of a court having unlimited jurisdiction in civil and criminal matters or a
court having jurisdiction in appeals104•
The Labour Dispute (Arbitration and Settlement) Act is to the effect that it is the
discretion of the industrial court to admit or exclude the public or the press from any of
its sittings105•
Section 8 provides for the functions of the Industrial Court, these include;
i. Arbitrate on labour disputes referred to it under the Act
ii. Adjudicate upon questions of law and fact arising from references to the
industrial court by any other law.
iii. Dispose of labour disputes referred to it without undue delay.
103 Section I 0. 104 Article 143 (e). 105 Section 21.
39
Objectives of the Industrial Court
i. To provide a platform for people to equitability express their labour grievances as
to achieve equal opportunity in employment in Uganda.
ii. To facilitate decent productive work and better living standards to the people
through timely adjudication of labour disputes.
iii. To ensure industrial peace and justice in Uganda economy through timely
adjudicating of labour disputes106•
An award or decision of the Industrial Court shall be announced by the chief judge in
the presence of the parties to the dispute or their representatives and awards given
shall be general damages and pecuniary damages107•
An appeal from the industrial court shall lie from a decision of the Industrial Court to
the court of appeal only on point of law or to determine whether the industrial court
had jurisdiction over the matter108•
3.2.4 ATTORNEY GENERAL OF UGANDA
The office of the Attorney General is provided for in Uganda under article 119of the
1995 Constitution of the Republic of Uganda which provides that there shall be an
Attorney General who shall be a Cabinet Minister appointed by the President with the
approval of the Parliament.
A person shall not be qualified to be appointed attorney general unless he or she is
qualified to practice as an advocate of the High Court and has so practiced or gained
the necessary experience for not less than ten years.
The Attorney General is the Principle legal advisor of the government who performs
functions such as giving legal advice and legal services to the government on any
subject, drawing and perusing agreements, contracts, treaties, conventions and
106 The Labour Dispute (Arbitration and Settlement) Act 2006. 107 Section 14. 108 Section 22.
40
documents by whatever name called to which the government is a party and to
represent the government in courts or any other legal proceeding to which the
government is a party.
3.2.5 HIGH COURT OF UGANDA
The high court of Uganda is provided for under article 138 of the Uganda constitution
of 1995 and it consist of the principle judge and such number of judges of the high
court as may be prescribed by the high court.
The high court have unlimited original jurisdiction in all maters and such appellate and
other jurisdiction as may be conferred on it by the 1995 constitution of Uganda under
article 139.
3.2.6 UGANDA POLICE FORCE
The Uganda Police Force is provided under article 211 of the 1995 Constitution of
Uganda, every Police Force shall be organized and administered in such a manner and
have such functions as parliament may by law prescribe.
The functions of the Uganda Police Force under article 212 include protection of life
and property, preserving of law and order, preventing and detecting crime, and
cooperating with the civilian authority and other security organs established under the
Constitution and with population generally.
3.3 Decided Cases
These are case laws on summary dismissal that has been decided upon before a
competent court.
In the case of Ebiju v UMEME Ltd (U)
In this case, the plaintiff was summarily dismissed by the defendant for alleged acts of
gross misconduct of vandalizing street light conductor, and illegal construction of
electricity lines which allegations were not proved by evidence when the plaintiff
appeared before the disciplinary committee.
41
Court observed that in the post 2006 era an employee to be dismissed summarily must
be accorded a fair hearing and that the evidence proving the allegations must be
availed to the employee as aspects of hair fairing109•
The above decision is to the effect that summary dismissal is only permitted where
there exist justifiable reasons for dismissing the employee and if no reasons in the
wisdom of court exist, the dismissal becomes an unlawful dismissal and the employee
may be compensated.
The employee also has a right to appeal to a competent court for counts
pronouncement.
The above position offers good protection to employees against high-handed employers
who would wish to hire and fire as an adventure. The employer has indeed an
unfettered right to fire an employee but fair and proper procedure must be followed in
the process.
I agree with this fortification offered to employees in the hostile employment market in
the post 2006 labour legal regime.
In the case of Obonyo v MTN (U)
Where the claimants contract of service was terminated by the respondent without
giving reasons for his termination and the contract of employment had incorporated
that the employment contract could be terminated with (30) days' notice or payment in
lieu of notice.
Court observed that any termination without justifiable reasons to unlawful dismissal
and that the claimant ought to have been given fair hearing before termination of his
contract.
Court further observed that payment in lieu of notice could not change the fact that the
claimant was unlawfully dismissed110•
109 Civil Suit No.I of212.
42
It also discussed the aspects of when dismissal or termination may be without notice
which includes a dismissal under section 69 meaning a gross misconduct or breach
which fundamentally breaches the contract of employment.
In the case of Kizito v Marie Stopes Uganda
Where the Industrial Court was faced with a dispute of dismissal without notice for
alleged misconduct in particular abscondment. The human resource manager of the
respondent permitted for such dismissal of misconduct. The claimant in the facts missed
work without authorized leave while the claimant argued that he had leave in
accordance with the manual.
Court found in favour of the plaintiff that the claimant gave notice of sickness to his
immediate supervisor which in effect eliminates misconduct by the plaintiff.
Court further found that the claimant's right to a fair hearing was violated for lack of
proper change and time and lack of quorum.
Court then continue to state that damages for unlawful dismissal are at the discretion of
court111•
It would appear in the circumstances that where there is a contract or organization that
permits summary dismissal for certain misconduct, summary dismissal would be
justified if such acts are dishonestly committed by the employee which position is
agreed with its entirety.
However, I disagree with the decision that damages are at the discretion of court, the
remaining months on the contract should be considered with specific damages if
unlawful dismissal is found by court to exist and other damages like general damages
can then be at the discretion of court.
In the case of Kanyangoga and others v Bank of Uganda
"'Labour Dispute Claim No.45 of2015. 1"Labour Dispute Claim No.33 of2015.
43
The claimants were employees of the respondent bank, prior to termination, save for
the claimant, one Kavuma, the claimants appeared before the respondents
management disciplinary committee for allegedly breaching the "financial
embarrassment clause of their employment contracts", there contracts were terminated
and each of them was paid one month's salary in lieu of notice although subsequently
another two month's salary in lieu of notice was paid to them.
Court observed that much as the claimants appeared before the respondent
management disciplinary committee which amounts to a fair hearing, the Tenets of a
fair hearing were not complied with which is to the effect that the employee should be
informed of the charges before hand and therefore the employee should appear while
prepared to defend his or her self.
Court also observed that the claimants were not given an opportunity to have other
persons to appear with them as provided under section 66(1) (2) & (3)112•
In my view, although the disciplinary committee fell short of the high standards of a
court of law as far as a fair hearing was concerned, it could only amount to a penalty
on the part of the employer.
In the case of OyetOjera v Uganda Telecom Ltd
The plaintiff was suspended by the defendant pending investigations into alleged
complaints by the defendants customers regarding their statements, the plaintiff
appeared before the defendants disciplinary committee on the allegations that he
instructed Nsitta to update Sudan Relief Rehabilitation Commission with an old
Electronics fund transfer dated 25th /09/2007 worth shillings 11,736,721. The plaintiff
was dismissed on the grounds that he did not follow the established procedures for
handling Electronic funds transfer, raising credit notes and authorizing waivers, all of
which caused financial loss to the defendant.
112Labour Dispute Claim No.80 of2016.
44
Court held that the plaintiff was dismissed without being accorded a fair hearing and
the irregularities were of such a grave nature as to vitiate the proceedings and its
outcome.
Court further stated that the plaintiff's dismissal could not be justified where the
plaintiff was not accorded a fair hearing there by the dismissal was wrongful and the
plaintiff was awarded damages and costs113•
Courts should endeavor that the tenets of a fair hearing be adhered to by the employer
because according the employee to appear before the disciplinary committee does not
mean that the employer followed the tenets of a fair hearing as the law requires.
In the case of Magara v UMEME Uganda Ltd
The plaintiff was put under investigative suspension and the plaintiff was summoned to
attend a disciplinary interview against her on allegations of theft of company's property,
failure to comply with the company's financial policies and procedures leading to comply
with to loss of company property and gross negligence, the plaintiff was summarily
dismissed.
Court observed that the plaintiff was not subjected to a fair hearing and just process
before and during the disciplinary process therefore the plaintiff was wrongfully and
unlawfully dismissed.
Court also observed that the plaintiff was humiliated and inconvenienced owing to the
defendants unlawful and unlawful dismissal, therefore the plaintiff was awarded
damages and cost to that effect114•
In my view, courts should emphasize much on the employers to allow the employee as
the law requires to invite any person of his or her choice during the explanation before
the disciplinary committee as section 66 stipulates of which the employer should comply
with.
113 Civil SuitNo.l61 of2010. 114 Civil Suit No.39 of2010.
45
In the case of Kibuuka and others v Bank of Uganda
The claimants' service of contract was terminated under what their letters described as
"early retirement".
Court held that since was based on the principle of early retirement and yet the
claimants had not exercised their option of early retirement in accordance with rule 6 of
the retirement benefits scheme, the termination was wrongful and illegal therefore the
contracts of the claimants were unlawfully bought to an end.
Court awarded damages and costs to the claimants115
I agree with the decision of the court to the effect where the employer makes any
clause in the contract of employment which is ambiguous or not, then the clause will be
interpreted against the interest of the employer, in other words the employer should
make any provision he intends to rely on very clear to the employee.
In the case of Wakibi Fred v Bank of Uganda
The claimant was charged of financial embarrassment before a disciplinary committee
of the respondent and dismissed having been convicted of the same charge.
Court ruled that the claimant's dismissal was lawful.
Court further said that although the plaintiffs dismissal was lawful, the defendant did
not present to the employee the details of the charge against him and the employee
was not given sufficient time to prepare for his defense116•
Courts emphasis should always direct toward the tenets of a fair hearing as accorded
to the employee by the Act, and court should begin to consider specific damages for
unlawful dismissal and other damages as at the discretion of court for summary
termination of the employee.
115Labour Dispute Claim No.!84 of2014. 116Labour Dispute Claim No.4! of2014.
46
In the case of Sozi v The Public Procurement and Disposal of Public Assets
Authority
The defendant terminated the plaintiff's service of contract and was paid two month's
salary in lieu of notice and gratuity and the plaintiff never appeared before the
respondents' disciplinary committee to defend herself.
Court observed that the plaintiff's dismissal was unlawful, therefore court awarded
damages and costs to the plaintiff117•
I agree with the decision, however courts should bring to the attention of the
employers that the Employment Act makes it mandatory for the employer to accord the
employee a fair hearing before a decision the dismiss the employee summarily and the
post 2006 era any employer that fails to comply with this provision is liable to penalties.
117 Civil Suit No.63 of2012.
47
CHAPTER FOUR
THE RIGHTS AND REMEDIES AVAILABLE TO AN EMPLOYEE WHO IS
DISMISSED SUMMARILY IN UGANDA
4.0 Introduction
Every contract of service must comply with the provisions of the employment contract,
the employment act provides for such rights and remedies available to an aggrieved
employee while in the exercise of summary dismissal in the employment contract which
stipulates the available remedies to such an aggrieved party. This chapter contains the
rights and the available remedies to an employee who has been aggrieved as discussed
below.
4.1 Rights
Rights are legal, social, or ethical principles of freedom or entitlement that is to say
rights are the fundamental normative rules about what Is allowed of employees or
employers according to the legal system, social convention or ethical theory. Therefore
the rights of an employee who is summarily dismissed includes the following.
4.1.1 A right to be heard
An employer shall before reaching a decision to dismiss an employee except an
employee on probation on the grounds of misconduct or poor performance, explain to
the employee in a language the employee may be reasonably expected to understand,
the reason for which the employer is considering dismissal and the employee is entitled
to have another person of his or her choice present during this explanation.
Before making the decision, the employer shall hear the reasons advanced for such
misconduct or poor performance by the employee or his or her representative. The
employer shall give the employee or his or her representative enough time to prepare
48
the representation. This is nothing but a statement of the fact that no employee should
be dismissed without a fair hearing as the Employment Act118•
Unlike the common law which does not require a hearing when the employee is
properly subject to summary dismissal, the Employment Act makes it mandatory for
every employee to be accorded a right to defend himself or herself, and penalizes the
employer to a fine of a sum equivalent to one month's net-pay who fails to accord the
employee this right. The employee has a right to complain to the Labour Officer against
the unlawful dismissal within 3 months from the time of such dismissal, and the officer
may make appropriate orders related to payment of the sum and other benefits119•
In the case of AM Jabi V Mbale Municipal Council
The council on some allegations of misconduct dismissed Jabi Ssekandi Ag. J succinctly
laid down several principles regarding dismissal arguing whilst it was the inalienable
right of the employer to dismiss the employee, once a contract of service existed
between them he was bound to observe its provisions.
Court held that it was a fundamental requirement of natural justice that a person
properly employed was entitled to a fair hearing before being dismissed on charges
involving breach of disciplinary regulations or misconduct where this was not done it
could be said the dismissal was wrongful 120.
4.1.2 A right to proof of reason for termination
In any claim arising out of termination, the employer shall prove the reason or reasons
for the dismissal, and where the employer fails to do so, the dismissal shall be deemed
unfair. However an employee who has been dismissed while still on probation or an
employee who has not yet served at least 13 weeks of employment has no right to
claim that he was unfairly terminated.
118 Section 66(1).
119 Section 66(3).
120 [1975] HCB 191
49
Wrongful dismissal arises when the employer terminates the contract without regard to
the terms of the contract. Further, where requisite notice to terminate has not been
given or payment in lieu thereof, or where the employer fails to adhere to some or all of
the terms of the contract121•
In the case of Jet Speed Air Services (u) Ltd v Joan Tumuhairwe
Okello JA (lead Judgment) said that the law regarding master and servant is not in
doubt. There cannot be specific performance of the contract with his servant at any
time for any reason or for none. But if he does so in a manner not warranted by the
contract, he must pay damages for breach of contract. So the question in a pure case
of master and servant does not at all depend whether the master has heard the servant
in his or her defense. It depends on whether the facts emerging at the trial prove
breach of contract. The wrongfulness of the termination of a contract of employment
depends on whether the evidence reveals breach of the contract (Ridge v Baldwin), lack
of the required experience for the job does not constitute misconduct, it may affect the
employee's proficiency or competence but certainly is not misconduct. Misconduct
connotes intentional bad behavior which may include late reporting for duty122•
4.1.3 The right to natural justice
Legal justice is a legal philosophy used in some jurisdictions in determination of just or
fair processes in legal proceedings. The concept is very closely related to the principle
of natural law (latin jus natural) which has been applied as a philosophical and practical
principle in the law in several common law jurisdictions, particularly the UK and
Australia. Natural justice includes the notion of procedural fairness and may incorporate
the following; a person accused of a crime, or at risk of some form of loss, should be
given adequate notice about the proceedings, a person making a decision should
121 Section 68 of the Employment Act 2006. 122 CASA No.17 of 2000.
50
declare any personal interest they may have in the proceedings and also the
proceedings should be conducted in a fair way to all parties123•
In the case of John Bosco Oryem v Electoral Commission and UNEB Election
Mukiibi Ag J stated at page 30, that the fact that the petitioner was in fact john Bosco
Oryem was not enough to disqualify him without due inquiry. The decision was
improper.
That the EC is a quasi judicial organ by virtue of section 15(1) of Electoral Commission
Act and its functions re akin to those of a court or an arbitrator, at page 40 he said that
"if the interests of an individual are going to be affected, he must be given a hearing.
Where quasi judicial functions have to be exercised by a board or anybody of persons.
It is necessary and essential that they must always give a fair opportunity to those who
are parties in the controversy to correct or contradict any relevant statement prejudicial
to their case. Both sides have a right to be heard".
Court held that the respondent met to discuss the complaints which had been
submitted against the petitioner without notifying him that such proceedings were
taking place. The respondent made a decision against the petitioner to disqualify him .
without informing or inviting him to defend himself therefore the respondent acted
contrary to natural justice in arriving at its decision124•
Also in the case of Marko Matovu v Mohammed Sseviri
That audi alterm partem is a cardinal rule of natural justice so central to Uganda's
system of justice that it must be observed by both judicial and administrative tribunals.
Where an administrative agency acts contrary to this rule it exceeds powers conferred
upon it by parliament. Such a decision is void and of no consequence in the same way
as a decision made without jurisdiction is a nullity125•
123 A Comparative Analysis of Labour Law Decisions in Uganda's Judicial System (1985-2002).
124 Petition No.2 of 1982
125 [1979] HCB 174 CA.
51
4.1.4 Right to repatriation
An employee recruited for employment at a place which is more than one hundred
kilometers from his or her home has a right to be repatriated at the expense of the
employer to the place of engagement on the expiry of the period of service stipulated in
the contract, on the termination of the contract by order of labour officer, industrial
court or any court as stipulated under section 39 of the Employment Act 2006.
4.1.5 Right to appeal
A party who is dissatisfied with the decision of a labour officer on a complaint made
may appeal to the industrial court which shall lie on a question of law, and with leave of
the industrial court, on a question of fact forming part of the decision of the labour
officer as explained in section 94 of the Employment Act 2006.
4.2 Remedies
Remedies refer to means to achieve justice in any matter in which legal rights are
involved. Remedies may be ordered by courts, granted by judgment after trial or
hearing, by agreement (settlement) between the person claiming harm and the person
he/she believes has caused it and by the automatic operation of law. The only remedy
available to a person who claims an infringement any of the rights granted under the
Act shall be way of a complaint to a labour officer, therefore the available remedies to
an employee who has been dismissed summarily includes the following;
4.2.1 Damages
This is a remedy which is both provided under the Act and the common law for
wrongful dismissal which are measured by considering what the employee has lost or
would lose but should have gained had the contract been rightfully terminated
according to its terms. Damages therefore cover payment equivalent to the notice
period, and in fixed term contracts, the balance of the payment up to the time the term
of contract would expire. The law expects the parties to mitigate the loss arising from
52
the wrongful breach of contract as far as the circumstances of the case permit, the
award of damages covers arrears of wages, accumulated leave, tension, gratuity, and
quantum meruit for any uncompleted period of service up to the time of dismissal126•
4.2.2 Compensation
Where a Labour Officer decides that an employee's complaint of unfair termination is
well founded, the Labour Officer shall give the employee an award or awards of
compensation. The order shall in all cases include a basic compensatory order for four
weeks wages and such other additional compensation but not exceeding the equivalent
of 3 months wages and not less than the equivalent of one month's wages which shall
be determined by the Labour Officer looking at the employees length of service with the
employer, the reasonable period the employee expected his contract to last, the
opportunities available to the employee for securing a similar job elsewhere and also
the value of any severance allowance to which the employee is entitled127•
4.2.3 Continuity of employment
Absence of employee from work does not break the continuity of employment if the
absence was due to taking lawful leave, suspension, temporary layoff by employer, a
st~ike or lockout or other industrial action in which he or she did not participate, serving
a sentence of imprisonment for an offence not related to the work or in accordance
with an agreement with the employer.
Furthermore, the employee is still deemed in continuous service even though he was
absent from work because of his or her participation in a strike or other industrial action
and any interval between an employee's two periods of employment with the same
employer where the later has agreed that in consideration of the employee refunding or
agreeing to refund any severance allowance and other terminal benefits received,
service shall be regarded as continuous. In cases of seasonal employment, the
126 Hadley v Baxendale [1854] EWHC J 70. 127 Section 78 of the Employment Act 2006.
53
employee is deemed in continuous service for the aggregate of all the time he or she
actually performed work for the same employer in successive seasons128•
4.2.4 Severance allowance
The calculation of severance allowance pay shall be negotiable between the employer
and the workers or the Labour Union that represents them. Severance allowance is
payable on cessation of employment or on the grant of any leave of absence pending
the cessation of employment, whichever occurs earlier and in case the entitled
employee is dead, it shall be paid within one month to the personal representative, a
spouse, adult dependent relative or guardian of a minor dependent relative as the
Labour Officer may decide.
A right to severance allowance shall be in addition to any rights enjoyed by an
employee in relation to his employer and shall be subject to the same rights of set-off
or compensation order or counterclaim as are available against wages or any other
remuneration due under the contract of service.
Failure to pay severance allowance when due is an offence for which an employer may
be ordered to pay fine, doubling the amount of severance allowance. An employer shall
pay severance allowance where an employee has been in his or her continuous service
for a period of 6 months or more under any following instances; the employee is
unfairly terminated by the employer, the employee dies in the service of the employer,
otherwise than by an act of the employees own serious and wilful misconduct, the
contract is terminated by reason of death or insolvency of the employer and such other
circumstances as the minister may by regulations provide129•
However severance allowance is not paid where the employee is justifiably summarily
dismissed, abandons his job or absconds from work without leave or any explanation
being offered to the employer, having been terminated, is reinstated on the job or other
128 Section 84 of the Employment Act. 129 Section 87 of the Employment Act 2006.
54
job of similar or better terms and rejects the offer or if the employee was still serving
on probation130•
130 Section 88 of the Employment Act.
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CHAPTER FIVE
DISCUSSION OF FINDINDS, CONCLUSSION AND RECOMMENDATIONS
5.0 Introduction
This chapter discusses the findings that is what the researcher out while carrying the
research, conclusion basing on what the researcher found out in the course of the
research and the recommendations which when used can bring a better change in the
modern employment relation and labour laws and more specifically in reducing the
claims arising out by an employee who has been summarily dismissed by his or her
employer in the employment contract for a breach which is repudiatory in nature or
gross misconduct.
5.1 Discussion of Findings
Between 2010 to 2014, there has been an increased in the number of claims of
employment related matters of unfair summary dismissal of employees by their
employers in their contract of employment under the Labour Department due the
employee's breach of a fundamental obligation in their contract of service which the
Employment Act 2006 stipulates for. This is the effect that the employer is vested with
the right to dismiss an employee who has committed an act which amounts to gross
misconduct which warrants summary dismissal without or with less notice than that the
employee is entitled to under the law. Therefore this circumstances makes the
employer who dismissed an employee summarily liable to payment in lieu of notice and
other benefits that he or she was entitled to under the law.
The major findings of this study are highlighted below;
i. It was found that there is a general increase in the number of employment
related claims or matter in Uganda over the years in the due to breaches of
fundamental obligations by the employee under the contract of service in the
employment contract.
56
ii. It was also found that irrespective of whether any dismissal which is a summary
dismissal is justified or whether the dismissal of the employee is fair, any
employer who fails to comply with the provision of the law is liable to pay the
employee a sum equivalent to four weeks net pay.
iii. It was also found that the reason for which the employer is considering dismissal
and the employee is entitled to have another person of his or her choice present
during the explanation before reaching a decision to dismiss an employee.
iv. It was also found out that summary termination takes place when an employer
terminates the service of an employee without notice or with less notice than
that to which the employee is entitled to by any statutory or contractual
provision while in summary dismissal, the employer must never terminate the
contract without giving requisite notice or payment in lieu of such notice.
5.2 Conclusion
The Employment Act 2006 makes it mandatory for the employer to give a fair hearing
to the employee even in cases of gross misconduct justifying summary dismissal,
however this does not mean that the employee must remain in employment until the
investigations are complete until the hearing is determined and the right to suspend or
interdict is still available both under the contract of service which is governed by section
66 of the Employment Act 2006.
In determining whether the employer acted justly and equitably, regard must be had to
the Code of Discipline, the extent of compliance with statutory requirements, the
procedures followed in reaching the decision and in communicating it, the conduct and
capability of the employee and the previous practice of the employee in dealing with
analogous circumstances.
The acts or behaviors of an employee that are likely to justify an employer summarily
dismissing the employee without notice or with less notice compared to that the
employee is entitled to under the Act termed as misconduct provided a fair procedure is
followed include; gross insubordination, gross neglect of duty, dishonesty, theft,
57
physical violence, serious bullying or harassment of another employee, fraud,
falsification of records, willful destruction of the employers property, although the
Employment Act 2006 does not specifically provide for such instances of misconduct.
5.3 Recommendations
Based on the findings of the study, the employment related claims especially the
concept of summary dismissal can be reduce under the Labour Department if the
following recommendations are considered.
Employees should take reasonable note and care on how they conduct themselves from
certain conduct that would be gross misconduct amounting to a repudiatory breach of
their contract of service in some sense.
The employers should comply with the provision of the law in the exercise of summary
dismissal procedure in their contract of employment with their employees, for instance
the tenets of a fair hearing during the disciplinary exercise.
The employers should ensure that they have clear written procedures for their
disciplinary penalty and ensure that their disciplinary rules give examples of such acts
which are to be regarded as gross misconduct which warrants summary dismissal.
The Labour Department under the Ministry of Gender, Labour and Social Development
to always be strict with their subjects and the laws governing employment contract to
ensure that the employers, employee, industrial courts and labour officer comply with
the written provision of the law in their employment contracts.
The Labour Department should specifically provide a provision in the Employment Act
2006 to refer to those examples of misconduct that justifies the employer to dismiss the
employee summarily to avoid unfair summary dismissal on grounds that do not
necessarily warrants summary dismissal.
58
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