Court name
HC: Civil Division (Uganda)
Judgment date
18 September 2014

Kamegero v Rwenzori Bottling Co. Ltd (Civil Suit-2012/27) [2014] UGHCCD 291 (18 September 2014);

Cite this case
[2014] UGHCCD 291

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL SUIT NO.027 OF 2012

AUGUSTINE KAMEGERO :::::::::::::::::::::::::::::::::::::PLAINTIFF

VERSUS

RWENZORI BOTTLING CO. LTD ::::::::::::::::::::::::::::::DEFENDANT

BEFORE: HON. LADY JUSTICE ELIZABETH MUSOKE

JUDGMENT

In January, 2004, the plaintiff was by written appointment employed by Nile Breweries Ltd as a Sales Representative, and on 15th November, 2010, he was employed by the defendant as a National Operations Manager.

On the 24th June, 2011, the plaintiff was subjected to a disciplinary inquiry by the defendant, on grounds of gross dishonesty during the course of employment contrary to the defendant’s Employee Personal Code of Conduct and Procedure; and on 27th June, 2011, the plaintiff was informed by the defendant that he had been summarily dismissed from employment. The plaintiff appealed the decision within the company and on 18th July, 2011, the plaintiff was informed that his appeal had not been successful, although the summary termination had been commuted to the penalty of termination with notice.

The plaintiff brought this suit claiming for special damages, general damages, aggravated damages and exemplary damages for breach of employment contract, and costs of the suit.

On the other hand, the defendant contended that termination of the plaintiff’s employment was in accordance with his employment contract and the law, and that the plaintiff had neither showed nor suffered any damages as claimed.

At the scheduling conference held on 4th February, 2013, the parties agreed on the following facts;

  1. The defendant is a body incorporated under the laws of Uganda in the mineral water bottling business capable of suing and being sued in its own capacity and although it is a member of the South African Breweries Miller (SAB) group, it is sued in its own capacity.
  2. On the 15th November, 2010, the plaintiff was employed by the defendant as its National Operations Manager at a starting salary of UGX 4,750,000/=, per month.
  3. On the 20th June, 2011, the defendant summoned the plaintiff for a disciplinary inquiry charging him with gross dishonesty during the course of employment. The plaintiff was suspended with pay pending the outcome of the inquiry.
  4. On the 24th June, 2011, the said disciplinary hearing was conducted in the presence of the plaintiff.
  5. The plaintiff was dismissed from employment with the defendant summarily.
  6. The plaintiff appealed this decision.
  7. The outcome of the appeal was the termination of the contract of employment with notice.

The following were the agreed issues;

  1. Whether the plaintiff’s contract was wrongfully terminated.
  2. Remedies available to the parties.

 

ISSUE 1,

Whether, the plaintiff’s contract was wrongfully terminated.

The plaintiff; PW1, testified in his witness statement that on 24th June, 2011, he was made the subject of a disciplinary inquiry by the defendant, being charged with gross dishonesty during the course of employment contrary to the defendant’s employee personal code of conduct and procedure, and on 27th June, 2011, he was summarily dismissed from the employment. He appealed the decision and on 7th July, 2011, he was notified that the appeal would be heard on 12th July, 2011. It was his testimony that although he was physically present at the appeal hearing, he presented his appeal in written form like it had been for the previous hearing. On the 18th July, 2011, he was informed that his appeal was not successful and the summary dismissal had been commuted to the penalty of termination with notice. However, despite having handed over the defendant’s property, the defendant has adamantly refused/neglected to pay the plaintiff the monies due to him on termination.

It was the plaintiff’s further testimony that the Nile Breweries Employee booklet [EXH D3] that was used to terminate his employment was not applicable to him because he was not an employee of Nile Breweries Ltd, and the employees of Nile Breweries Ltd. could not be privy to the termination of his employment contract with the defendant. In this regard, the whole proceedings/hearings and their outcome were in breach of his employment contract.

In the alternative, the plaintiff testified that the above evidence notwithstanding, the termination still amounted to breach of contract because the principles of substantive and procedural fairness were not followed. He alleged that he was not given the opportunity of cross questioning his accuser and other witnesses to ascertain the veracity of the claims and he was not given the particulars of the offence charged against him and the documents in relation thereto in order to give him adequate time to prepare and present his defence. Further, that the contract was terminated without due process to the laid down procedural guidelines to justly and fairly come to the conclusion that he was guilty of the alleged offence.

PW2; Romeo Wafula, who was a former employee of the defendant company testified that the defendant’s actions of terminating the plaintiff’s contract of employment was malicious.

PW3; Esther Swaga, testified that she witnessed the transaction where Dr. Byaruhanga was lent UGX 10,000,000/=, by Gloria Kawanjuzi Mbabazi, and that the plaintiff was also present.

The defendant on the other hand led the evidence of three witnesses to show that the termination of the plaintiff’s employment was done in accordance with his employment contract and the law and was therefore not wrongful.

DW1; Sanyu Violet Musiige, testified that she is a credit controller of the defendant company. She stated that during the course of her duties, she discovered a number of bad debts, including those of Dr. Byarugaba and the debts arose because so many orders were approved without payment. When Dr. Byarugaba was invited to provide an explanation as to how he would clear his debt, he stated that the reason he had failed to pay was because the plaintiff had not given him a larger trading territory as promised, in exchange for a bribe of UGX 2,000,000/= and he provided deposit slips [EXH D2] as proof of the bribe. The complaint culminated into a disciplinary hearing against the plaintiff and he was eventually terminated for gross dishonesty.

DW2; Samalie Namirembe, who is the Human Resource Manager of the defendant company and Nile Breweries Company Ltd, testified that in November 2010, the plaintiff was appointed as the National Manager in the Sales and Distribution department. The appointment followed the takeover of the defendant company by SABMILLER the parent company of both Nile Breweries Ltd and the defendant company; the defendant company then adopted the Nile Breweries Ltd Human Resource policies, since they all emanated from SABMILLER. To that end, the plaintiff was bound by the terms and conditions of service stipulated in the Nile Breweries Ltd employee booklet, and code of conduct.

It was DW2’s further testimony that on the 24th June, 2011, the plaintiff was subjected to a disciplinary hearing for engaging in gross dishonesty during the course of employment and thereafter, the plaintiff was summarily dismissed. The plaintiff exercised his right of appeal provided under the Nile Breweries Ltd terms and conditions under which he had been charged and he contended in his written document on appeal that the procedures used by the disciplinary committee were alien to his contract of employment. The plaintiff stated that whereas the employment contract was between him and the defendant company, he was charged, tried and terminated by Nile Breweries employees using Nile Breweries Ltd procedures. On 12th July, 2011, the appeal was heard and it was held that the process and verdict by the disciplinary committee was correct, but commuted the penalty from summary dismissal to termination on notice. It was her testimony that upon termination, the plaintiff was advised to complete the clearance process and receive his dues but he neglected to do so.

It was the testimony of DW2 that the disciplinary hearing which culminated into the plaintiff’s termination of employment was conducted in accordance with the rules of natural justice; he was given a fair hearing by being given sufficient notice, he was allowed to bring a representative, and he produced witnesses at the hearing.   

The defendant’s next witness, DW3; Balikagira Fred, testified that he was employed as the Plant Engineer of Nile Breweries Ltd and the defendant company, and he chaired the disciplinary appeal hearing held on 12th July, 2011, lodged by the plaintiff on charges of gross dishonesty. In the appeal document relied upon by the plaintiff, he stated that the whole process of the disciplinary hearing was flawed, the procedures used were alien to his contract of employment because the people who tried him were Nile Breweries Ltd employees, who relied on the Nile Breweries Ltd code of conduct and disciplinary procedures and the accuser was absent at the hearing. DW2 testified that the evidence adduced was evaluated and it all pointed to the fact that the plaintiff had engaged in financial dealings with a customer and this conduct was a breach of the code of conduct and Ethics policy [EXH D3].    

Counsel on either side filed written submissions in support of and against the claim respectively.

It was the submission of Counsel for the plaintiff that EXH D3, which is an Employee Booklet for Nile Breweries Limited was alien to the plaintiff’s contract of employment and should not have been used while reaching the decision to terminate the plaintiff’s contract of employment. Counsel made reference to paragraph 7 of the plaintiff’s contract of employment [EXH P7], which reads as follows;

“Further terms and conditions of employment in your staff grade are set out in the employee booklet in accordance with Company rules and regulations.”

Counsel for the plaintiff submitted that the company referred to in the contract of employment is the defendant and that the company code of conduct and procedures referred to were those of the defendant and not those of Nile Breweries Ltd. If the defendant company meant for another company’s code of conduct to apply as the defendant’s code, the plaintiff’s contract should have explicitly mentioned so. Further, that no documentary evidence was adduced to show that the Nile Breweries Ltd procedures applied to the plaintiff’s contract of employment, and by using the same procedures against the plaintiff was a total breach of contract.

In addition to the above, Counsel for the plaintiff submitted that the defendant terminated the plaintiff’s employment without due consideration to natural justice and without consideration to the laid down procedures and guidelines of the defendant company while coming to the decision to terminate his contract on grounds of gross dishonesty in the course of employment. The plaintiff was not given an opportunity to a fair hearing, nor was he given an opportunity to cross examine the person who accused him. Further, that the plaintiff was not paid his salary in lieu of notice, gratuity and other benefits

Counsel further contended that while the plaintiff was served with a memo inviting him to attend a disciplinary inquiry against him, the memo only mentioned that the plaintiff was charged with Gross dishonesty during the course of employment but did not show when the alleged offence was committed and against whom it was committed.  The memo was not accompanied with copies of documents to be relied upon, the witnesses to be called by the defendant, or any other relevant information that would give the plaintiff adequate time and opportunity to present his defence. Counsel submitted that the record presented to the plaintiff as the summary of the disciplinary hearing shows gross procedural abuse; the committee eroded the legal principle that it is the person who alleges a fact  that must prove  and not the one on whom it is alleged as was the case at the disciplinary hearing.

Counsel also submitted that the record of proceedings for the disciplinary hearing [EXH D5], was not accurate and this fact is not disputed by the defendant. The record had errors and was incomplete; and since it was used while coming to the decision that led to the plaintiff’s dismissal, the court should find that such a decision was reached in error.

On the other hand, Counsel for the defendant submitted that the plaintiff did not deny knowledge of the Disciplinary Code of Procedure at Nile Breweries Ltd [EXH D3], nor did he deny knowledge about the employee rules and regulations of Nile Breweries which he had signed and when charges for gross misconduct were brought against him, he had knowledge of where the offence was extracted from. Further, that the plaintiff also testified during cross examination that the absence of a disciplinary Code of Conduct branded in the name of the defendant would not warrant commission of offences. Counsel contended that the plaintiff’s appeal against the lower committee’s decision was not whether or not the lower committee’s procedures were alien; the plaintiff submitted to the whole disciplinary process, and believed in the justice and fairness of the disciplinary procedures.

With regard as to whether the termination was wrongful, Counsel for the defendant submitted that the plaintiff received a notification of the disciplinary hearing clearly stipulating the offence, advising him to prepare a defence, produce witnesses and attend with legal representation, if any. The distributor who had brought accusations against the plaintiff availed deposit slips [EXH D2], of the money being paid to the plaintiff’s account, and the plaintiff never claimed to understand the offence, and he went ahead to present his side of the story. Counsel relied on Robert Mukembo Versus Ecolab East Africa (U) Ltd, Civil Suit No. 54 of 2007, where court stated that;

“In my view, the employer’s obligation in a situation such as this is to ensure that the employee has had an opportunity to learn what allegations have been leveled against him and should allow him to put his own side of the story to the employer before any decision is taken. This was done in the instant case. The defendant believed the plaintiff to be guilty.

It believed also that this conduct jeopardized the existing contract between themselves and Century Bottling Co. Ltd and opted for termination of the contract. On the basis of the evidence on record, I’m unable to fault their decision in that regard. There were in my view grounds warranting disciplinary action. Such action under the contract of employment included termination.”

Counsel further submitted that at the disciplinary hearing, the plaintiff acknowledged the transaction between him and the distributor; this contravened the Disciplinary Code of Conduct, [EXH D3], which provides that;

“An employee will be in breach of personal code of conduct if his behavior results in entering into a contract written or oral that could reasonably be expected to give rise to conflict of duties.

An employee will be in breach of the personal code of conduct if his or her behavior results in the economic well being of the company being detrimentally affected.

It was the contention of counsel for the defendant that the plaintiff’s actions resulted into conflict of his duties because the distributor used the same transaction by refusing to clear his debt on grounds that he had been paying the plaintiff. Counsel cited British Home Stores Versus Burchell [1978] 1 R.L.R 379O, where an employee was dismissed for alleged dishonesty relating to staff purchases. The Employment Appeal Tribunal held that in such cases the employer had only to show that he entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at the time.

Counsel submitted that the plaintiff’s conduct was so gross, it contravened the Disciplinary Code of Conduct he signed; therefore he was not wrongly terminated and there was no breach of contract of employment by the defendant.

I have carefully considered the submissions of counsel on either side, the evidence, law and authorities relied upon and I find that the primary question to be determined by this court is whether the termination of the plaintiff’s contract was in accordance with the terms and conditions of the employment contract between the plaintiff and the defendant.

 

 

It is trite law that an employment relationship is usually premised on the terms and conditions of employment as well as the employment law to regulate and define the relationship. In Barclays Bank of Uganda Versus Godfrey Mubiru SCCA NO. 9 OF 1998, court held that;

“Where a service contract is governed by written agreement between the employer and employee as in this case, termination of employment or services to be rendered will depend both on the terms of the agreement and on the law applicable.”

In the present case, it is not in dispute that the terms and conditions included in the plaintiff’s contract of employment [EXH P7] were binding on him. The said contract of employment [EXH P7] makes reference to further terms and conditions of employment set out in the employee booklet in accordance with company rules and regulations. It was the case for the defendant that the defendant company had adopted the Nile Breweries Limited Human Resource policies, and therefore, the plaintiff’s employment was governed by the terms and conditions of service stipulated in the Nile Breweries Ltd employee booklet and the Disciplinary Code of Conduct [EXH D3]. It was submitted for the defendant that the plaintiff was well versed with the said policies and he had knowledge of where the offence leveled against him had been extracted from.

It is my view that the defendant company and Nile Breweries Ltd are two different companies, with different policies and terms of employment for their employees, regardless of the fact that they are sister companies. If the defendant had intended for the Nile Breweries terms and conditions to apply to the plaintiff’s contract of employment, the same should have been specifically stated / mentioned in the plaintiff’s contract of employment. The Nile Breweries Ltd Booklet [EXH D3] defines the company on which the booklet is intended to apply as Nile Breweries Ltd, and the defendant company is not mentioned anywhere in the booklet. It is immaterial that the plaintiff had knowledge of the Nile Breweries Limited employee manual and disciplinary code of procedures; they only applied and were binding on him when he was still an employee of Nile Breweries Ltd. I therefore find that the defendant was in breach of the employment contract when it terminated the plaintiff’s contract while relying on the Nile Breweries terms and conditions of employment.

However, I find that it is necessary to determine whether the termination was justified regardless of the fact that the procedures used to terminate the contract were unlawful. I agree with the contention of counsel for the defendant that absence of a disciplinary code branded in the name of the defendant does not warrant commission of offences or indiscipline on the part of an employee. The Employment Act, 2006, gives an employer a right to impose a disciplinary penalty or to dismiss an employee on grounds of misconduct or poor performance. However, the dismissal should be with justifiable reasons. In Jabi Versus Mbale Municipal Council, [1975] HCB 191, it was held that a dismissal was wrongful if it is made without justifiable cause and without notice. In the present case, the plaintiff was charged with gross dishonesty during the course of employment and his employment was terminated basing on the above grounds as being in breach of the company’s personal code of conduct. Counsel for the defendant submitted that the code of conduct provided as follows;

“An employee will be in breach of personal code of conduct if his behavior results in entering into a contract written or oral that could reasonably be expected to give rise to conflict of duties.

An employee will be in breach of the personal code of conduct if his or her behavior results in the economic well being of the company being detrimentally affected.

Counsel further contended that the transaction as admitted by the plaintiff resulted into a conflict of his duties because the distributor used the transaction in refusing to clear his debt on grounds that he had been paying the plaintiff. In my opinion however, the charge of gross dishonesty is completely different from allegations based on conflict of interest. I find that the provisions in the disciplinary code relating to conflict of interest could not have been used in charging the plaintiff for gross dishonesty.

The above notwithstanding, I find that the charge of gross dishonesty based on a transaction where the plaintiff was receiving money on his personal account on behalf of a third party was inappropriate. The transaction was completely different from the business of the defendant. I do not find that it is dishonest dealing when people who are known to each other exchange friendly loans amongst themselves. I find that the defendant had an obligation of proving dishonesty, before dismissing the plaintiff on such a charge. From the proceedings and the evidence adduced, I find that there was no proof whatsoever pointing to dishonesty on the part of the plaintiff. It is my finding that the dismissal was unjustified in the circumstances.

It was also the plaintiff’s case that the defendant terminated the contract of employment without due consideration to the rules of natural justice, like giving the plaintiff a fair hearing before the termination/dismissal.

Section 73(1) of the Employment Act, 2006, stipulates that termination of employment is unfair, and therefore unlawful if the principles of natural justice and equity are not followed during the dismissal. A right to a fair hearing is one guaranteed by/or stated to be non derogable under the Constitution. Therefore, even if the plaintiff’s conduct was envisaged by the defendant as calling for dismissal, he was still entitled to a fair hearing before the dismissal. The right to be heard is a fundamental procedure that any administrative body or tribunal is expected to observe and uphold. In Ridge Versus Baldwin & others [1964] AC 40, it was held that a decision reached in violation of the principles of natural justice, especially the one relating to the right to be heard, is void and unlawful.

It is not in contention that the plaintiff was subjected to a disciplinary hearing on the 24th of June, 2011, and the outcome of the hearing was that he be summarily terminated. He appealed the decision, and the appeal was heard on 12th July, 2011, whereupon his employment was terminated on notice. However, the plaintiff contends that he was not accorded a fair hearing at the said hearings.

As to what amounts to a fair hearing, the defendant would have complied if the following was done;

  1. Notice of allegations against the plaintiff was served on him and a sufficient time allowed for the plaintiff to prepare his defence.
  2. The notice should set out clearly what the allegations against the plaintiff are and his rights at the oral hearing. Such rights would include the right to respond to the allegations against him, the right to be accompanied at the hearing, and the right to cross examine the defendant’s witnesses or call witnesses of his own.
  3. The plaintiff should be given a chance to appear and present his case before an impartial committee in charge of disciplinary issues of the defendant.

(See Ebiju James Versus UMEME Ltd Civil Suit No.0133 of 2012)

From the reading of the proceedings of the two disciplinary hearings, and from the evidence adduced by both parties, it is clear that the person who made the complaint and accused the plaintiff (Dr. Byaruhanga) did not attend the disciplinary hearings so that the plaintiff could get a chance to ask him questions and examine him on the allegations that he had advanced a bribe to the plaintiff. The right to a fair hearing includes the right to hear the witnesses of the other side testify openly and for the accused to challenge those witnesses by way of cross examination if he chooses to do so.(See Charles Twagira Versus Uganda, SCCA No.3 of 2003). It is unfortunate that at both the initial disciplinary hearing and on appeal, the committees relied on the allegations / complaints of a person who was not brought for the plaintiff to cross examine him and the plaintiff’s contract of employment was eventually terminated. Even after the plaintiff bringing this omission to the attention of the appeals committee in his written submissions on appeal [EXH P17], the appeals committee still neglected it and upheld the decision of the initial disciplinary committee.

It also appears to me that the plaintiff was tasked to prove his innocence, yet the burden to prove his guilt was in the normal course of circumstances and procedure supposed to be on the defendant. An extract from the summary of the plaintiff’s disciplinary hearing [EXH P17], reads as follows;

“The chairman asked to understand the circumstances under which Augustine would transact such private business whereas he is also a representative of the company to whom Dr. Byaruhanga owes a substantial debt. How could Augustine lend such huge sum of money to a person he had only met for the first time in January 2011. The chairman then asked the defendant for evidence to disprove that the allegations of soliciting for and taking a bribe but there was no documentary evidence produced by Augustine in this respect.”

It is trite law that a person who alleges must prove. It was therefore procedural impropriety and a violation to the right of a fair hearing when the plaintiff was expected and asked to prove his innocence, instead of the defendant endeavoring to prove his guilt.

It was also the plaintiff’s contention that while he was served with a memo inviting him for a disciplinary hearing, the memo only stated that the plaintiff was to be charged with gross dishonesty during the course of employment, but did not mention when the offence was committed, against whom it was committed and it was not accompanied with the necessary documents to enable the plaintiff to prepare her case. Counsel for the defendant submitted that the plaintiff received a notification of the disciplinary hearing, clearly stipulating the offence, advising him to prepare a defence, produce witnesses, and attend with legal representation, if any. The right to be heard and the right to a fair hearing are exercisable where the person has been availed with all information necessary to appreciate the nature of the accusation or charge, the statement of facts in support of any such accusation or charge and opportunity to prepare and answer the charge. (See Willy Kayondo Versus KCC, HCCS No.665 of 2002). 

From the reading of the plaintiff’s invitation for the disciplinary hearing [EXH P11], indeed the memo only informed the plaintiff of the charge that was going to be preferred against him but did not give any further particulars of avail any documentation. I find that this did not give the plaintiff or opportunity to adequately prepare him case. I find that this was less than the expectations for a fair hearing to be said as having been achieved.

It is therefore my finding that the defendant’s termination of the plaintiff’s employment was unlawful and unjustified.

ISSUE 2

What remedies are available to the parties.

The plaintiff claims for special damages, general damages, aggravated damages, exemplary damages and costs of the suit against the defendant.

Special damages.

  • Payment in lieu of notice.

The plaintiff claimed for three months payment in lieu of notice.

Counsel for the defendant contested this claim and submitted that the plaintiff was advised to complete his clearance and receive his payment, which he declined to do.

There are no terms and conditions on record between the plaintiff and the defendant that can guide court on the amount the plaintiff is entitled as payment in lieu of notice. In Barclays Bank Versus Godfrey Mubiru SCCA No.1/1998, it was held that;

“in my opinion, where any contract of employment, like the present, stipulates that a party may terminate it by giving notice of a specified period, such contract can be terminated by giving the stipulated notice for the period. In default of such notice by the employer, the employee is entitled to receive payment in lieu of notice and where no period for notice is stipulated, compensation will be awarded for reasonable notice which should have been given, depending on the nature and duration of employment.”

From the plaintiff’s contract of employment, he was appointed by the defendant on 1st November, 2010, and his employment was terminated on 18th July, 2011. Therefore, the plaintiff had been in the defendant’s employment for a period of 9 months. According to Section 58(2) (a) of the Employment Act, the notice required to be given by an employer shall be not less than two weeks where the employee has been employed for a period of more than six months but less than one year.  It is not in contention that the plaintiff was earning a monthly salary of UGX 5,000,000/=at the time of termination of his employment. I shall therefore award UGX 2,500,000/= to the plaintiff as payment in lieu of notice.

  • NSSF Contribution.

The plaintiff prayed that this court orders the defendant to avail the plaintiff the proof of the defendant having paid NSSF contributions and for the defendant to state how much these monies are.

NSSF is a statutory claim and it is the plaintiff who has the obligation to process his NSSF benefits in accordance with the law. The defendant would not be in position to tell the plaintiff how much money the plaintiff has saved in NSSF. Since there is no allegation from NSSF that the defendant did not make any contributions towards the fund on its employee’s behalf, this claim therefore fails.

  • Monies due to the plaintiff arising out of his employment with Nile Breweries

It was the case for the plaintiff that during his employment with Nile Breweries Ltd, he had accumulated gratuity monies within the Nile Breweries staff provident fund and when he became an employee of the defendant, the defendant undertook to pay all his dues owed to him by Nile Breweries ltd, including Monies from the staff provident fund. Paragraph 5 of the plaintiff’s contract of employment [EXH P7] reads as follows;

“You will participate in the company staff provident fund currently at NBL (its terms and conditions will apply) and be transferred to the RBC scheme when it is implemented at a later stage.”  

It was the submission of counsel for the defendant that the process to claim terminal benefits is supposed to be initiated by the plaintiff, who would submit his personal information to the fund manager and receive his money. Therefore, the plaintiff is abusing court process by demanding for his terminal benefits from the wrong party yet no one has ever denied him the said benefits.

I find that the plaintiff was aware that the staff provident fund was still being run at Nile Breweries Ltd and not by the defendant. By the time he left, the scheme had not yet been implemented at the defendant company. I agree with counsel for the defendant that the plaintiff should lodge his claim with the fund manager so that his funds can be availed. The plaintiff has not proved that he made a claim for the funds and they were not availed. Therefore this claim fails.

General damages

It was the submission of counsel for the plaintiff that it is a principle of law that where a contract is breached, the person in breach pays to the other person general damages if he demands them.  Counsel prayed for UGX 10,000,000/= as general damages.

It is my finding that the plaintiff was inconvenienced and humiliated owing to the defendant’s unlawful and wrongful dismissal. It is clear that the plaintiff had been a good and exemplary employee who had built a good record. In Bank of Uganda Versus Betty Tinkamanyire SCCA No.12 of 2007, court held that;

“…the reasoning of the court of Appeal in Agbettah Versus Ghana Cocoa Marketing board (1984-86) GLRD 16 should be followed so that the courts were able to award damages which reflected the courts disapproval of a wrongful dismissal and the sum was not confined to an amount equivalent to the worker’s wages.”

 Taking that into account, I shall award the plaintiff UGX 30,000,000/= as general damages.

Unpaid salary for the months of June and July, 2011.

It was the submission of counsel for the plaintiff that the plaintiff was not paid for the months of June and July, 2011, which he was lawfully entitled to, before being served with the notice of termination dated 18th July, 2011 after the appeal hearing. The defendant did not contest this claim. I therefore award the plaintiff UGX 10,000,000/= as unpaid salary for the months of June and July, 2011.

Exemplary damages.

Counsel for the plaintiff submitted that from the evidence on record, the unlawful termination of the plaintiff’s contract of employment was as a result of company politics. The defendant knew the allegations against the plaintiff were baseless but went ahead to terminate the plaintiffs contract of employment. Counsel submitted that this is a case that warrants the award of exemplary damages. He relied on Obongo Versus Kisumu Municipal Council (1971) EA 9 to submit that exemplary damages are entirely punitive and such factors as malice and arrogance can be considered in making an award for exemplary damages.

Exemplary damages may be awarded in cases where the behavior of the defendant is oppressive, arrogant and high handed. In Rookes Versus Barnard, [1964] ALL ER, It was stated that there are only three categories of cases in which exemplary damages are awarded;

  1. Where there has been oppressive, arbitrary, or unconstitutional action by the servants of the government.
  2. Where the defendant’s conduct has been calculated by him to make profit which may well exceed the compensation payable to the plaintiff; and
  3. Where some law for the time being in force authorizes the award of exemplary damages.

 I find that this is not a case for award of exemplary damages. The actions of the defendant do not fall in any of the above categories warranting the award of exemplary damages. I therefore deny the claim for exemplary damages.

Aggravated damages.

Counsel made reference to the plaintiff’s evidence that the defendant’s actions were unjust, arbitrary, harsh, wrongful, reckless and deceitful. The plaintiff also testified that since he was dismissed he has lost several job interviews and the defendant spread this information to other would be employers that he was a wrong person. Counsel for the defendant relied on Bank of Uganda Versus Betty Tinkamanyire SCCA No.12 of 2007, where it was held that where the acts of the employer are not only in breach of contract of employment but were degrading and callous, this would be a good case for the employee to be awarded aggravated damages. 

Aggravated damages are compensation to the plaintiff for injury to his feelings and dignity caused by the manner in which the defendant acted. The contentions of the plaintiff that the defendant spread information to other would be employers that the plaintiff was a wrong person, have not been proved and therefore cannot be a basis for the award of aggravated damages. However, I find that the manner in which the defendant dismissed the plaintiff who was a senior member was an embarrassment to the plaintiff. I shall therefore award the plaintiff UGX 5,000,000/= as aggravated damages.

In conclusion, the following claims of the plaintiff are hereby granted;

  1. Payment in lieu of 2 Weeks notice                 -           UGX 2,500,000/=
  2. General damages                                             -           UGX 30,000,000/=
  3. Un paid salary for two months                       -           UGX 10,000,000/=
  4. Aggravated damages                                      -           UGX 5,000,000/=
  5. Interest on items (a) and (c) at the rate of 15% per annum from the date of dismissal till payment in full.
  6. Interest on (b) and (d) above at court rate from the date of judgment till payment in full.
  7. Costs of the suit.

Orders accordingly.

 

Elizabeth Musoke

JUDGE

18/09/2014