THE REPUBLIC OF UGANDA
THE INDUSTRIAL COURT OF UGANDA HOLDEN AT KAMPALA
LABOUR DISPUTE CLAIM NO. 019 of 2015
(Arising from H.C.T CS. NO. 047 of 2015)
DR. BARNABAS KIIZA AMOOTI ………………………………….CLAIMANT
MAKERERE UNIVERSITY KAMPALA…………...........RESPONDENT
1. Hon. Chief Judge Ruhinda Asaph Ntengye
2. Hon. Lady Justice Linda Tumusiime Mugisha
- Mr. Ebyau Fidel
- Mr. Anthony Wanyama
- Ms. Julian Nyachwo
The claimant, an Associate Professor, was employed as Senior Lecturer at the respondent institution.He had initially been engaged by the respondent aslecturer via an appointment letter dated 9/11/1992.
Subsequently, there were allegations of soliciting and accepting bribes from students against him and the respondent summoned him to answer the allegations which he did.After hearing the defence, the respondent demanded an apology which was issued by the claimant and later on the claimant was dismissed on 30/12/2013.The claimant had before dismissal been suspended for 4 months at ½ pay.He had also been demoted.
The agreed issues according to the agreed and signed joint scheduling memorandum are:
1) Whether the dismissal and demotion of the claimant was lawful
2) What remedies are available to the parties?
In an attempt to resolve the above legal issues,the claimant adduced evidence from himself alone.The respondent adduced evidence from 3 witnesses.
In his evidence in chief, the claimant stated that he was summoned before the college committee to answer charges of soliciting bribes from students including one Opoka James.He went before the committee and explained himself and resumed his work.Later on, he was asked to appear before the appointment s Board to answer the same charges.He appeared before the Board on 25/4/2013.He was required to explain himself against what in his view were unsubstantiated allegations since no one accusing him appeared before the Board.According to him, he was later on coerced to admit that he took money from students and because he thought if he admitted he would get a lighter sentence he indeed admitted.
Subsequently he was suspended for six months and on 15/1/2014 he received a termination letter dated 30/12/2013. On 14/12/2014 he received a letter demoting and dismissing him which letter was dated 2/1/2014.In his evidence, the offence for which he was dismissed was not of a gross nature and the dismissal was effected by a Board acting illegally.
In the defence of the claim, in a sworn statement, Prof. Kyamanywa, testified that having received a complaint that the claimant had demandedfor money from a post graduate student, one Opoka, he brought this allegation to the attention of the claimant asking him to show cause why disciplinary action should not be taken against him.In reply the claimant asked for time to explain his side of the story and hence the members of the quality, assurance and post graduate committee were tasked to investigate.
The committee submitted areport to him to the effect that the claimant received money from students for supervising them outside the normal University fees structure and that the claimant helped students to submit theses without their personal effort.
He forwarded the report to Ag. Deputy vice chancellor academic affairs.
The second respondent witness, one Proff. Frank Kansiime, in his sworn defense witness statement told court that as a member of the respondent’s Quality Assuarance and post graduate committee, he participated as Chair person in the investigation of acomplaint ofProfessional misconduct, against the claimant. The committee interviewed various people including the claimant.
According to him the claimant admitted the infractions leveled against him and asked for mercy.The committee recommended that the respondent refunds money taken from students and he resigns or he be dismissed.
The last witness for the respondent, one Mary Tizikara, in her evidence in chief told court that, she received a letter from the Academic Registrar to the effect that there was need to refer the claimant to the respondent’s appointment Board for disciplinary action.After establishing that there was a case for the claimant to answer in accordance with the Human Resource Manual,she preferred a charge against the claimant and submitted the same to the appointment’s Board.The claimant was informed and he appeared before the Board on charges of soliciting and receiving money from students.
According to her, the claimant before the Board admitted demanding money from weak students that he supervised and admitted having received money particularly from one Opoka.The claimant wrote an apology.
The Board eventually decided to demotethe claimant and dismiss him, in view of the gravity of the offence.
Both the claimant and the respondent were represented by eminent legal counsel.Both counsel filed written submissions with a range of authorities in support of each of their clients.We are grateful for their outstanding input in an attempt to resolve the dispute in this matter.
DECISION OF THE COURT
The first issue is whether the dismissal and demotion of the claimant waslawful.We shall answer this issue by looking at each of the aspects alleged to have led to unlawfulness of the decision to dismiss the claimant.
The first aspect is of failure to afford the claimant a fair hearing
We associate ourselves with the submission of counsel for the claimant that the right to a fair hearing envisaged under Article 28 of theconstitutionincluded the right to be given ample time to prepare for one’s defense.The contention of the claimant was that having received a charge sheet on 18/4/2013, the hearing slated for 24/4/2013, was not sufficient for him to prepare for his defense before the appointments Board.
It is our considered opinion that how much time is sufficient for one to prepare for his defense will always depend on the nature of the case and the circumstances surrounding the same.
In the courts of law, under order 08 rule (1)(2) of the Civil Procedure Rules unless otherwise ordered by court, the defender is given 15 days to file his defense after being served with summons.
This is to allow the defendant digest the allegations and prepare for his defense.
In the case before this court, the claimant was given 6 days to file his defense The respondent arguedthat the claimant having not pleaded in his memorandum of claim that he was not given sufficient time to file his defense, he ought to be precluded from asserting this claim at this point in time.They also asserted that this notice was nevertheless sufficient notice.
The evidence on the record is indicative of the fact that the claimant had appeared before a lower disciplinary committee on the same charges.The claimant did not complain about the sufficiency of time to prepare before he appeared for defense in this committee.
It is our considered opinion that the claimant having responded to the same allegations in a previous committee, he was well aware of the allegations before the Board.There was nothing to suggest that the allegations before the Board were different from those before the earlier committee.This having been the case, we think that in the circumstances, 6 days were sufficient time for the claimant to respond to the same allegations.
Although the fact that the claimant did not protest the inadequacy of time to prepare may not be used against him, such failure may be indicative of the fact that he was possessed with enough information to be able to put up a response against the allegations.Consequently we find that the claimant had sufficient time to prepare for a response to the allegations before the appointments Board.
Another aspect was thatof cross examination.In principal we agree that where a witness testifies against someone, the evidence of such witness before being admitted ought to be tested by cross examination.
In the instant case, both at the investigative committee level and at the appointments Board level, the claimant did not cross examine the witnesses.
After perusal of the proceedings of both committees, we find that the claimant himself never denied having received money from his particularly weak students for the purpose of helping them get grades.We agree with the submission of the respondents that in the circumstances of the case, failure to cross examine the witnesses did not renderfatal the case for the respondent for having unfairly heard the claimant.We agree that the situation would have been difference if the claimant had denied receipt of the money for then there would have been need to test the evidence of the witnesses against thedenials of the claimant.
It was also submitted on behalf of the claimant that the Quality Assurance
Committee was not properly constituted since it had only 4 members of the 11 members when it took the decision.We have perused the Human Resource Manual pages that have something to do with disciplinary action.We have not found any provisions relating to the minimum number of members of a disciplinary committee or an investigation committee, so as to determine whether or not the Quality Assurance committee that investigated the claimant was properly constituted or not.However in cross examination Prof. Frank Kansiime informed court that depending on how big the department was, the members of the committee could be as high as 12 members and that the members that attended in the case of the claimant were 7 although the minutes show 06 members.Accordingly, we do not fault the committee for co-opting other members for the purpose of hearing the claimant since no evidence is before us that it was not acceptable.As already mentioned, no evidence was adduced to show that a certain number of members was the required minimum for the committee to be able to investigate.
The claimant also raised an issue of jurisdiction of the appointment Board to try and later on dismiss him.He argued that the power to terminate an academic staff’s employment lay in the University council and not in the appointment’s Board.
We agree with counsel for the respondent that this submission was misconceived.It is not disputed that under section 50(1) of the Universities and other Tartially Institutions Act the appointment Board is a committee of the University council.In his written submissions counsel for the claimant conceded that the “University council is the supreme organ of the respondent University whereas the appointment’s Board is merely a committee of the University Council”.It seems to us that the quarrel of the claimant is about the failure of the respondent to employ sections 5.9, 5.10 and 5.14 of the Hman Resource Manual.
These provisions, describe stages in disciplinary measures which include warning, supervisor, termination, dismissal and right of appeal. Under the above sections of the Human Resource manual, the appointing authority is dressed with power to suspend, terminate or dismiss an academic staff.
Power to terminate employment staff is given to the university council and not to the appointment’s Board.The same applies to the submission by counsel for the claimant about the powers of suspension of an employee pending the next course of action.This power undersection 5.9 (b) is given to EITHER the vice Chancellor or the Appointing authority.The factthat suspension was done by the appointing authority therefore and not the vice chancellor could not, as counsel wants us to believe, nullify the decision.
Another aspect of the trial procedure that the claimant attacked was the admission of the charges by the claimant.Counsel vehemently argued that the claimant was forced to admit having solicited for the money from the students.
In cross examination claimant is on record stating:
Mr. Lubinge Moses was the sharp student.By this time he had just completed his Mastersprogramme……………..”
This is evidence in cross examination.It seems to us that indeed the claimant asked for the money on behalf of a student who was very weak so that such a student could be helped to pass.But in our considered opinion, it was not the business of the claimant as supervisor to continue demanding money from students as a condition to the alleged super students to help the weaker ones.
We would have been convinced if he had first made contact with both the super student and the weaker ones and left the weaker ones to be coached at the terms agreed between the two.
The fact that the claimant continued to harass the weaker students for the money in our view tantamounted to solicitation which was contrary to the law.
Since in cross examination this solicitation was admitted, there is no reason for us to believe that the claimant was forced or in any way coerced during either the investigation or at the hearing to admit the same.
The claimant may have had in his mind the calculation that if he admitted, the respondent could possibly issue him with a warning rather than a dismissal.The fact that the respondent opted for the latter in our view shocked the claimant and led him to file this claim against the respondent.
We have no doubt in our minds, given the evidence on the record, that indeedthe claimant for personal gain and contrary to ethics of a lecturer at a University demanded money from post graduate students for purposes of supervising their academic work.We are satisfied that due diligence was done by the respondent to afford the claimant a fair hearing after which a decision was taken by the appropriate authority.
We are satisfied that in the circumstance both the demotion and the dismissal of the claimant from the services of the respondent institution was lawful and justified.
The second issue relates to damages.
Having declared that the demotion and dismissal of the claimant was justified, all the prayers by the claimant fail.
An award is entered in favor of the respondent with the result that the claim against the respondent is dismissed.No order as to costs is made.
1. Hon. Chief Judge Ruhinda Asaph Ntengye …………………………………………..
2. Hon. Lady Justice Linda Tumusiime Mugisha …………………………………………..
- Mr. Ebyau Fidel …………………………………………..
- Mr. Anthony Wanyama …………………………………………..
- Ms. Julian Nyachwo …………………………………………..