THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT JINJA
CIVIL SUIT NO. 202 OF 2015
KAKIRA SUGAR LIMITED:::::::::::::::::::::::::::::::::::::: DEFENDANT
BEFORE: HON. LADY JUSTICE EVA K. LUSWATA
Background and brief facts
The plaintiff, a former employee of the defendant sued them for wrongful dismissal and in addition made a claim for special, general and punitive damages. In response, the defendant admitted the fact of employment and contended that the process of dismissal was fair and lawful. They in addition raised a preliminary point of law that the claim was filed in the wrong court and prayed for its dismissal with costs. Both counsel filed written submissions as directed and the following is my ruling.
The defendants contend that the suit being one touching a dispute over employment should have been filed in the Industrial Court and not the High Court. They specifically relied on Section 93 of the Employment Act (hereinafter referred to as the Act). It is provided in Section 93(1) of the Act that:
“except where the contrary is expressly provided for by this or any other Act, the only remedy available to a person who claims infringement of any of the rights granted under this Act shall be way of complaint to a Labour Officer”.
It is stated further in Section 93(7) of the Act that:
“Where the labour officer does not make a decision within 90 days on a complaint referred to him, then the complainant shall seek recourse to the Industrial Court”.
Counsel for the plaintiff conceded that the Labour office is the court of first instance in labour matters. However he contended that in this case, the Labour Officer did not make a final decision in the matter and as such, no appeal could lie from his office to the Industrial Court (hereinafter the Court) in line with S.94 of the Act. He contended in addition that the above provisions did not oust the inherent jurisdiction to the High Court which is granted by the Constitution under Article 139(1) and provides as follows:
“The High Court shall, subject to the provisions of the Constitution, have unlimited original jurisdiction in all matters and such appellate and other jurisdiction as may be conferred on it by this Constitution or other law”.
I am aware that the jurisdiction of the High Court and Industrial Court in matters of labour disputes has for long been anarea of controversy. The Constitutional Court in her decision in Justice AsaphNtengye&AnorVrs The Attorney General (Constitutional Petition No. 33/2016), made and an attempt to give a guide on the subject. The Court was considering a complaint by Judges of the Industrial Court that certain provisions of the Labour Disputes (Arbitration & Settlement Act) 2006 (hereinafter the Labour Disputes Act) contravened the Constitution in as much as the it set their tenure of office at five years, and other matters. Resolution of that petition entailed determining whether the Industrial Court is a Court of Judicature. The Learned Justices answered that question in the affirmative when they held that the Court falls under the category of subordinate courts created by Article 129(1)(d) of the Constitution and has concurrent jurisdiction with the High Court. In their decision, they considered the judgment of Justice Mulenga in Attorney General Vrs Joseph Tumushabe (SCCA No. 3/2005)where he heldthat:
“…the Parliament has clearlyin its discretion placed the industrial Court under the Labour Disputes (Arbitration and Settlement) Act 2006in the appellate hierarchy at the same level as the High Court. The Industrial Court therefore has concurrent jurisdiction with the High Court.”
I believe Justice Wolayo in her decision reinforced the above decision when she directed that a labour dispute (originally filed in the Chief Magistrate’s Court of Soroti be re- filed in the High Court in spite of the provisions of Section 93 of the Employment Act and the existence of the Court. See Concern Worldwide VrsMukasaKugonza Civil Revision No. 1/2013 (Soroti).Similarly in this case, the 90 days within which the Labour officer could resolve the matter ended on 12/7/2013, before the Court was fully constituted and operational. In this case, I am equally bound by the decision of the Court of Appeal.
Matters emanating from a Labour Officer are referred to the Court under Section 5 of the Labour Disputes Act which was not drafted in mandatory terms. The only mandatory provision is the requirement for the Labour officer to refer the matter to the Court upon express request by any party to the dispute in that respect. My understanding of that provision was to leave room for those parties not satisfied with the decision of the Labour officer (or where no decision is made), to have recourse to other dispute resolution mechanisms, including the High Court.
Under Section 24 of the Labour Disputes Act, the powers of the Labour Officer are restricted to conciliation and mediation only. Therefore, a matter before them is only deemed complete and thus ready for reference to the Court, when mediation,conciliation, or any other proceedings under Section 4 of the Labour Disputes Act fail. The only option open to the plaintiff would be to file his claim in the High Court. Even then, the Labour Officer informed the plaintiff in Annexure G3to the plaint that he was “…unable to come up with a lasting solution…” to the dispute because the witnesses proposed by the plaintiff could not be traced. The plaintiff was then advised “..to follow up the case with the Industrial Court”.This was by no means a “decision” of the Labour Officer.It would thus be correct for plaintiff’s counsel to argue that without a proper decision on his complaint, his client could not appeal/file a reference to the Court.
The decision of the Supreme Court in URA VrsRabbo Enterprises Ltd &Anor(SCCA No. 12/2004)is distinguishable from the current facts. The Supreme Court was called upon to determine whether the High Court has inherent jurisdiction to hear tax matters and therefore, whether it is the Tax Tribunal with original jurisdiction in such matters. The Court considered the fact that establishment of tax tribunals is rooted in the Constitution and specifically empowers them to handle tax tribunals. The Court went on to state that it is the Constitution that limited the original jurisdiction of the High Court and at the same time empowered the tribunals with jurisdiction. Therefore that,the tribunal is the first court of instance in tax disputes,and the High Court is to deal with appeals from their decisions.
On the other hand, the Court has been held to be a Court of Judicature, with two of its arbiters head holdings the post of a High Court Judge. Decisions of the Court are appealable not to the High Court but to the Court of Appeal. The interpretation would then be that the two courts are of concurrent jurisdiction.
For the above reasons, I find no merit in the objection and it is dismissed with costs. The matter shall proceed to be heard on its merits at the Jinja High Court and it is open to the Plaintiff to fix it for hearing.
I so order
Eva K. Luswata