THE REPUBLIC OF UGANDA
THE INDUSTRIAL COURT OF UGANDA HOLDEN AT KAMPALA
LABOUR DISPUTE CLAIM. NO. 116/2014
(ARISING FROM H.C.S.S NO.0127/2011)
IP ONYANGO NOAH................................CLAIMANT
1. Hon. Chief Judge Ruhinda Asaph Ntengye
2. Hon. Lady Justice Linda Tumusiime Mugisha
- Mr. Ebyau Fidel
- Ms. Julian Nyachwo
- Ms. Nganzi Harriet Mugambwa
The facts of this case as we understand them are:
The claimant was employed by the government of Uganda as a police officer after police training in May 1970. He was admitted to a pensionable establishment in December 1984.
In August 2000, as he drew near retirement, he wrote to the Inspector General of Police about his imminent retirement. According to him, he developed misunderstanding with his superior one Ochom Edward who ordered several transfers in a short spell of time and who chaired a police council meeting that decided in his absence to send him to attend a course with junior staff. At the same time his name was deleted from the pay roll and Ochom ordered for his arrest where upon he wrote a complaint to the Human Rights commission.
After training at Masindi, he was arrested and detained at Nsambya Barracks whereupon he wrote a complaint to the IGG and was subsequently released on bond. He was later on charged with spreading harmful propaganda C/S 44
Code 8(2)(C) of the Police Act on the first count and insubordinate or oppressive conduct C/S 44 code 11(1) of the Police Act on the second count.
He was also charged with Breach of confidence C/S 44 Code 22(d) of the policeAct. On 14/12/2009 the claimant was convicted on the charge of Breach of confidence and court recommended discharge from the police force. On6/1/2010 the claimant was found guilty on both counts of spreading harmful propaganda C/S 44(11) (1) of the Police Act and was sentenced to a demotion or reduction of rank from IP to AIP.
According to him, he lodged an appeal which was frustrated.
According to the respondent’s reply to the memorandum of claim, the claimant was lawfully charged before the disciplinary tribunal and found guilty as charged and the claimant did not lodge any appeal.
When the case came up for hearing, the respondent did not appear and because we were satisfied that they had been properly served, we allowed the claimant to proceed exparte.
The claimant in his submission, framed certain issues but we think that they do not properly and finally resolve the controversy in the claim. Therefore we form the opinion that the following issues will resolve the controversy.
- Whether the claimant was terminated and if so whether the termination was lawful.
- Whether the claimant is entitled to any remedies.
The claimant adduced his own evidence as well as the evidence of one Kakooza. Both testimonies were written witness statement which were sworn. In addition there appears on the record an affidavit sworn by the claimant on 10/05/2015.
In his sworn witness statement, the claimant said he was maliciously prosecuted and convicted and sent on hard labour as punishment at Masindi Police training school despite medical reports recommending the contrary. He also testified that his attempts to appeal against the decision of the disciplinary committee were frustrated. He testified that he was denied access to his salary which was also an underpayment in US1 instead of US upper.
The second witness, one Hussein Kakooza testified that he was informed by the claimant that one Ochom ordered his arrest and that while in detention, he, the claimant, wrote a letter for retirement which he (the witness) took to police Headquarters. He told court (in the sworn statement) that having failed to secure police bond the claimant wrote a complaint to the IGG which he gave him to deliver whereupon the claimant was released.
According to the affidavit of the claimant, one Edward Ochom, his superior orchestrated a plan to victimize him because of his vigilance about the rights of an NRM group over a market in Ndeeba. This is detailed in a document filed by the claimant as Annex KI, which is a letter to the IGP dated 14/12/2008 titled “appeal against the decision of police council sitting at MasindiDecember2008”.The document as filed as “Confidential” andin the letter the claimant argued the IGP ought to drop his name from the list that was to participate in training at Masindi fundamentally because according to him, the training was masterminded by Edward Ochom for political reasons.
Another documents, C1, is a letter to the IGP dated 29/92009 and described “top secret” at the bottom of each page. It is a complaint against the IGP, Edward Ochom and two others, all superiors of the claimant. The complaint alleges that the Justice Sebutinde Commission Report found that one Arinaitwe used Edward Ochom’s pistol to kill people and that the same Ochom had mismanaged files.
The complaint alleges that Edward Ochom got corrupted by DP members to throw out NRM mobilisers from the Ndeeba market.
In the same letter, he alleges that Ochom could have been party to the killing of OchiengJadwong, a Magistrate Grade One in Tororo. He alleges that Ochom planned to kill him, which plan was foiled because of his connection with NRM cadres and security agencies.
He alleges that his properties were damaged and others stolen by police officer named in the letter including one M. Nganzi a relative of the IGP. He reported them to P.S.U (but no action was taken).
He admits having written a complaint to the Ministry of Ethics in confidence, and alleges that Ochom and others had turned the police to be a personal firm and thatOchom had tortured several people. He alleged in the same complaint that the IGP at one point physically assaulted one CPL Rukirande almost to unconsciousness in the presence of Ochom and that Ochom wrongly informed the IGP that the claimant was the in charge whereupon the IGP also started witch hunting him. He reveals in the same letter that he also complained to the Human Rights Commission.
In his submission, counsel for the claimant contended that the recommendation of attending a police refresher course (as a punishment) amounted to trying the claimant in absentia. The same police council recommended that the claimant be tried by the Police disciplinary court after the course. Counsel attacked the disciplinary proceedings contending that the claimant was charged under a General Enquiry File contrary to the normal procedure. He argued that the propaganda aspect of the charges came from one D/ASP Muhwezi as prosecution witness, yet the message (of propaganda) was not exhibited nor printed. He argued that sending a message could not amount to oppressive conduct or insubordination. He contended that having been sentenced to a discharge, the claimant could not thereafter be sentenced to a demotion.
He submitted that the charge sheet was defective for having no register number or offence number and for naming the IGP as a complainantyet he was chairman of the police council, appeals court.
He argued that the claimant, having protested against the composition of the court, there was a miscarriage of Justice when the same was not changed.
He contended that the claimant was denied the opportunity to exercise his right of appeal and was victimized, discriminated, dismissed and removed from office without just cause.
He submitted that the claimant was deleted from the payroll before he went for the refresher course in March2008 and so by his trial in September 2009, he was no longer a police officer and the trial was malicious. He argued that no evidence in the trial connected the claimant to the offences. He submitted that failure to afford the claimant an opportunity to appeal rendered the hearing process incomplete and therefore was in contravention of section 66of the Employment act 2006.
Evaluation of Evidence and Decision of the Court
The case for the claimant, as we understand it, is that having worked diligently for the police force and having been as a result promoted and put on the permanent and pensionable establishment, he was maliciously and wrongly charged with unfounded charges and removed from the pay roll after wrongly being convicted, resulting in termination of his job.
The case for the respondent on the other hand, as we understand it, is that the claimant having committed the offences of spreading harmful propaganda, and breach of confidence, he was properly charged and properly convicted and since he never appealed, his conviction and sentence still stands.
According to the claimant, his superior one Edward Ochom maliciously dragged him to the police council which was chaired by him and which was biased, and as a result he was convicted. One of the alleged characteristics of malice was the fact that the claimant was taken for a course.
In our view, the choice as to who should go for which course in the police must be taken by the appropriate authority. The claimant protested going for this course but the authorities did not accept his protest. The question is, did this course have anything to do with his termination? Was it against the law for the police force to select him for this course even in the evening time of his retirement? We have not been shown any evidence to the effect that at such a time a police officer or any other person in employment is not expected to do certain duties just before his retirement. Ordinarily it is the employer who would not select a certain person for certain duties for the reason that certain duties or training would be beneficial for the organization once done by a person still with a longer career in the organization. In this case the soon to be retired officer would be excused or eliminated from the list of the beneficiaries of the course or duties.
Otherwise we think that an employee is expected to take full instructions related to his employment until the date of his official retirement unless the contract of employment provides otherwise.
Consequently, we do not see any merits in the submission that the claimant should not have been on the list of the trainees simply because he was in the evening of his retirement.
One of the issues raised by the claimant was the competency of the court that tried him. In his submission, counsel for the claimant seemed to argue that the protest of the claimant about the composition of the court ought to have been taken care of. However on perusal of the proceedings, we do not find any question raised by the claimant concerning the composition of the court. Neither is anything to this effect mentioned in the evidence of both the claimant and his witness. The contention about the proceedings in our view is about the charge sheet and the argument that the Inspector General of Police, being the chairman of the police council could not at the same time be a complainant.
We do not see any injustice in the IGP being a complainant. As pointed out by counsel for the claimant, under section 11 of the Police Act, the police council only exercises disciplinary control through the police court. The court that heard the charges against the claimant was not constituted by the IGP either as chairman or member.
It is not clear from the evidence at what point the police council sat to send the claimant to the police court although according to the evidence of the claimant the police council, having been under the chairmanship of one Edward Ochom, sent the claimant against his wishes, to training. It can be safely concluded that even when the police council decided to send the claimant to the police court, the IGP was not in attendance, since this is a fact that is not alleged by the claimant. Neither is it alleged that any member of the police court was at the same time a member of the police council. This being the case, we do not find any merit in the allegation that the court was not competent.
The code of conduct established under section 44 of the Police Act provides under code 8 for the offence of spreading harmful propaganda which includes:
- “Making oral or written statements intended to damage the force or government excepting constructive criticism.
- Spreading false news or stories intended to create division or confusion within the administration of the force
- Spreading news or stories intended to undermine the loyalty of any member of the force or to incite discontent among any section of the force”.
We have perused the proceedings of the court and the judgement. The court found the claimant culpable for having sent a message on phone that raised tempers and yet he seemed to have no apology claiming it was the truth relying on a report of the judicial commission of inquiry into corruption in the police force.
The court also found him culpable of the offence of insubordinate or oppressive conduct C/S 44(a)(1) of the Police Act as well as breach of confidence C/S 44 code 22(d) of the Police Act.
The claimant had opportunity to file his defense which he did by written submissions. We do not find any reason to fault the court in as far as a fair hearing in adducing evidence and cross-examination was concerned.
In his submission, counsel for the claimant contended that his client was deleted from the pay roll even before he went for the training. It is disclosed in paragraph 13 of his witness statement that one of the punishments he served was to have his names deleted from the pay roll but it is not clear exactly when this was done.
In paragraph 16 of the same statement the claimant alleged denial of access to his salary in the police SACCO where he contributed 40,000/= per month from March 2003. We do not think this refers to having been deleted from the payroll of the police.
In another statement referred to as “affidavit in support” sworn on 10/05/2015 it is only under paragraph 23 that the claimant alludes to having been deleted from the “Normal Roll and Programs” on the orders of Edward Ochom. He claims that Ochom directed the DPC to delete his name but no further evidence is adduced to suggest the date , month and year when this actually happened.
However on the evidence available it is clear that the claimant was deleted from the normal roll and subsequently from the pay role and we think the only justifiable basis would have been that the claimant had been charged, convicted and discharged from the police force.
Section 47 of the Police Act (as amended provides)
“(3) The Police authority shall have the power to dismiss summarily a police officer who has been prosecuted and convicted of a normal offence.
(4) The police authority may dismiss summarily a police officer for:
(a) Discreditable conduct
(b) Mutinous conduct
(c) Breach of oath
(d) Spreading harmful propaganda and;
(e) Negligence causing loss of fire arms or ammunition.
It seems to us that from the foregoing provision of the law, only the police authority is dressed with power to dismiss or terminate a police officer. This is the reason why the police court after convicting the claimant for the offence of breach of confidence C/S 44 code 22 (d) of the Police Act recommended discharge from the police office. It is noted, though, that after convicting the claimant on charges of spreading harmful propaganda C/S 44 (8)(2)(c) andinsubordination/oppressive conduct C/S 44 (ii)(i) of the Police Act, the court sentence him to demotion or reduction in rank from Inspector of Police (IP) to Assistant Inspector of Police (AIP).
It is our considered opinion that in amending section 47 of the Police Act, the legislature intended that a police officer could only be dismissed or discharged from the police Force having been found guilty of the offences described thereunder. And the police Authority had a discretion to sentence the culprit to any other punishment deemed fit since the provision says “the police authority may dismiss…….”
In the matter before this court, the police court decided to sentence the claimant to a demotion or reduction in rank on the charge of spreading harmful propaganda whose maximum sentence is provided as a dismissal as shown above. The court was well, within its powers to do this.
The same court recommended the claimant to be discharged from the police force on conviction of an offence that is not provided for under section 47 as amended.
Ordinarily this court would expect that after a recommendation of discharge, the police authority undersection 47, Police Act (Supra) would implement the recommendation by providing a discharge to the claimant. The evidence on record does not reveal that at any one time the police authority acted as recommended by the court. It is possible that they did not implement the recommendation because it was under a wrong provision of the law.
The question to be answered therefore is:
- Was the claimant discharged (terminated or dismissed)?
We note as counsel for the claimant submitted, that whereas the claimant was recommended to be discharged from the force by judgment dated 14/12/2009, he was thereafter on 6/1/2010 sentenced to a demotion. We think this was “uncoordinated movement” of decisions of the same court unless it is established that the respondent had opted not to implement the earlier recommendation of discharge. Otherwise we agree with the submission of counsel for the claimant that it was an irregularity and an irony that the claimant could be demoted after having been discharged from the police.
It is our considered opinion that in the circumstances, the police authority declined to effect the recommendation of the court to dismiss the claimant, because either they thought the claimant deserved another chance to serve the police force and therefore exercised their power of lenience or they thought the claimant deserved a lesser punishment.
In the absence of the exercise of authority to discharge the claimant as recommended by the police Court, this court is not in position to declare that merely because the court recommended a discharge, such a discharge took effect immediately. The discharge/dismissal could only take effect after the same was issued by the police authority under section 47 of the Police Act (as amended).
It follows therefore that by the time the police court heard and sentenced the claimant to a demotion, the claimant was still a serving officer not only because he had not been discharged from the police, but also because the recommendation to discharge him had been done with respect to an offence that was not specifically categorized as calling for a discharge under section 47 of the Police act, as amended.
We have already discussed the proceedings of the court. We do not accept the submission of counsel that the charge which was read to the claimant and which the claimant responded to in his written submission was defective. This was not a court of law but a disciplinary tribunal that need not follow every detail of procedure that is in ordinary courts of law. The claimant understood the charge and responded to the same. Nowhere in the evidence is it shown that he intended to call witnesses and he was denied the same. The claimant did not show how the defectiveness of the charge prejudiced his case. The claimant contends that he was denied the process of appeal against the decision of the Police court. We agree in principal that a claimant in a labour dispute is entitled to the process of appeal and failure to avail this process to a claimant may tantamount to non-completion of the hearing process as provided under section 66 of the Employment Act.
In the present case, we shall concentrate on the conviction and sentence of demotion since we have already declared that the discharge from the police was void. After his conviction, the claimant was informed of his right to appeal. On perusal of the record, we find a memorandum of appeal annexed as “C” on page 91 of the claimant’s trial bundle which details grounds of appeal. It is addressed to chairman, appellate court of police Headquarter and copied to the prosecutor, police headquarters. It shows having been lodged at police headquarters on 13/01/2010 and somebody signed as having received it for submission to appellate court. The name or designation of the person who received it is not mentioned.
We also find a complaint addressed to IGP regarding delay of the appeal. The complaint is dated 30/7/2010 and is received by IGG, Human Rights Commission and a certain Ministry which is not clear. The complaint is on page 99 of theclaimant’s trial bundle. Somebody also wrote to say “hand delivered to confidential registry 2/8/2010”
On perusal of those two documents, we form the opinion that the appeal was not properly lodged and if it was, there is no evidence that the proper appellate court received it. Both documents do not bear any certification that it was first of all lodged at a proper appellate office and secondly that it was received by a proper officer for the purpose of preparing to hear the appeal.
Consequently it is our decision that no appeal was lodged against the conviction and sentence on the charges of spreading harmful propaganda and insubordinate/oppressive conduct.
It seems to us, the question to be answered is:
What is the current status of the claimant in the police force?
It seems to us that although there was no formal letter of dismissal, the claimant was constructively dismissed. From the evidence adduced, the claimant is not working because he is not deployed anywhere in the police force and he was deleted from the pay roll.
Section 65(i) of the employment Act provides that termination shall be deemed to take place (interalia):
(c) where the contract of service is ended by the employee with or without notice as consequence of unreasonable conduct on the part of the employer towards the employee........."
In the case of NyakabwaAbwooli Vs Security 2000 Ltd, labour dispute 108/2014 this court held that:
“In order for the conduct of the employer to be deemed unreasonable within the meaning of section 65(1) (C) above, such conduct must be illegal, injurious to the employee and make it impossible for the employee to continue working. The conduct of the employer must amount to a serious breach and not minor or trivial incident and the employee must act in response to such breach not for any other uncoordinated reason and act in a reasonable time……………..”
In the current case before us, the unchallenged evidence of the claimant is that he was removed from the normal roll and subsequently from the payroll. Although the evidence is short of the date that the claimant was first charged inthe police court, and the date when he was removed from both rolls, it is clear that after a recommendation of discharge no discharge was effected, even though as already noted above, the recommendation related to an offence that never called for discharge.
It was the claimant’s evidence that when he was on 25/4/2009 directed to report to Kumi Police station in deployment after training he was bounced by the DPC on grounds that the said DPC had not received any message of deployment from police headquarters and that thereafter he was locked up and subsequently charged.
Although the claimant is not categorical whether he stopped working and when he stopped working, it is our position that in the circumstances of this case, the fact that the claimant was removed from the pay roll, without a formal discharge after conviction amounted to illegal and injurious conduct of the employer making it impossible for him to continue working. This was in addition to the fact that he was not properly deployed to a station after training. Having ignored the recommendation to discharge him and thereafter having sentenced him to a demotion, he ought to have been deployed at his demoted rank and ought to have been reinstated on the payroll as such. Failure to do both of these actions, in our view, constituted a fundamental breach as stipulated in the Nyakabwa case as above and the said breach could not allow him to work. It is our decision therefore that the claimant was constructively dismissed from the force effective the date he was removed from the pay roll.
The nest question is what remedies are available to the claimant?
From the analysis of the evidence above, the claimant was in the evening of his retirement when he was charged and convicted. We have already decided that he was properly demoted to the rank of AIP by the police court after a due hearing process.
Therefore it follows that the discharge having been declared void by this court, the claimant kept at his rank of IP until 6/1/2010 when he was demoted.
He is therefore entitled to his salary as IP until the date of demotion and salary as AIP until his retirement date. He is also entitled to his pension as provided for by law.
The claimant was put under emotional distress when he was recommended to be discharged and was not in fact discharged but instead thereafter demoted. Even after demotion he was never reinstated onto the pay roll, leaving him jobless. Having taken into consideration this state of affairs, we think he deserves general damages and we award 30,000,000/=. No order as to costs is made.
1. Hon. Chief Judge Ruhinda Asaph Ntengye
2. Hon. Lady Justice Linda Tumusiime Mugisha
- Mr. Ebyau Fidel
- Ms. Julian Nyachwo
- Ms. Nganzi Harriet Mugambwa