THE REPUBLIC OF UGANDA
IN THE INDUSTRIAL COURT OF UGANDA AT JINJA
LABOUR DISPUTE REFERENCE NO. 146 OF 2019
[ARISING FROM JJA/022/FEB/2019]
BATWALA AUGUSTINE……………………………………………………………………. CLAIMANT
MADHVAN GROUP …………………………………………….……………RESPONDENT
- Hon. Chief Judge Ruhinda Asaph Ntengye
- Hon. Lady Justice Linda Tumusiime Mugisha
- Mr. Bwire John Abraham
- Mr. Mavunwa Edson Han
- Ms. Julian Nyachwo
There is no doubt as the offer of appointment states at page 11 of the Joint Scheduling Memorandum that the claimant joined the respondent company as an employee in March 1998. In the course of the employment misunderstanding arose between the parties as to the time of reporting to work and departing from work. It was alleged that sometimes the claimant would report to work too early and sometimes he would report late, and that both instances were not acceptable. Certain warning letters were alleged to have been written to the claimant, although he denied knowledge about them.
Consequently on 29/11/2018 a notice to show cause and to explain why the claimant came late on the dates specified in the notice was written to the claimant giving him up to 1/12/2018.
On 3/12/2018 an invitation to a disciplinary hearing was issued requiring the claimant to attend hearing on 4/12/2018 at 2.00pm which he did. After the hearing (which according to the claimant was devoid of a fair hearing) he was dismissed.
According to a Joint Scheduling Memorandum filed in court on 25/09/2019 the agreed issues are:
- Whether the dismissal of the claimant was lawful
- What remedies are available to the parties
The claimant was represented by Ivan Mangeni Law Chambers & Co. Advocates while the respondent was represented by M/s. Kevin Emojong and Mr. Allan Ogoy of M/s. Okalang Law Chambers Advocates and Legal Consultants.
Summary of evidence led
The claimant adduced evidence from himself and one other witness and the respondent adduced evidence from one Bharat Limbachia, Purchase Manager of the respondent company and one Swalik Kasibante, Senior Executive Human Resource Manager of the respondent. It was the evidence of the claimant by written witness statement, that he always reported to work at 7.00am and always left at 6.00pm except when he got permission to come late or not to come to work for justifiable reasons and that indeed he would ask for and get permission.
In his evidence, he denied knowledge of letters dated 24/7/2014 and 28/5/2017 which letters were not given to him prior to or during the hearing, although he acknowledged letters dated 12/5/2014 and 7/11/2016 which did not surface during the hearing but to which he gave explanations by letter dated 30/11/2018.
According to him no evidence was adduced during the hearing to show thathe was coming late without permission and neither was evidence available to show that he was insubordinate.
The first respondent witness, one Swalik Kasibante testified that the claimant was dismissed for reporting late, reporting very early and being absent from work during working hours. According to the witness, the claimant from 27/4/2007 to 28/5/2007 was absent from work and he failed to offer an explanation despite being asked to do so. According to the witness the claimant admitted reporting late to work on 1st, 11th and 15th of March 2014 on receipt of a letter of warning dated 12/5/2014. The witness informed court that the continued abrupt absence from duty during working hours by the claimant without permission compelled him to write another letter on 7/11/2016 demanding an explanation but the claimant ignored it. When a reminder was sent on the claimant’s email and he ignored it, he was suspended from 15/11/2016 -22/11/2016. According to the witness despite the suspension the claimant continued with the habit of late coming and leaving before time resulting in subjecting him to disciplinary proceedings on 4/12/2019 wherein he admitted the charges.
The second witness for the respondent was one Bharat Lambachia who in his written witness statement corroborated the story of the 1st witness that the claimant was dismissed for reporting late on duty without permission. He asserted that being the boss of the claimant he was not aware of any reasons why the claimant was reporting late or earlier than required or even being absent from work.
It was the submission of counsel for the claimant that all tenets of a fair hearing were breached by the respondent; he was not given sufficient time to prepare for that defence, the original time card/biometric machine that generated data for coming late and coming early was not attached to enable him prepare his case, DW1, Swalik was complainant, investigator, as well as witness and judge, he was condemned for insubordination and other charges not originally brought to his attention and no witness appeared before the committee to testify against him.
Counsel for the claimant also argued that evidence exhibited as REX13 stating that the claimant admitted the offence contradicted document PEX L and M suggesting that REX 13 was doctored since PEX L and M were not challenged in cross-examination. According to counsel no exact words were shown to have been used by the claimant to admit the allegation and no offence was committed by the claimant coming early to work as per REX2 and REX3. Counsel reiterated that his client never came late for work except when he had permission from DW2, his boss, despite DW2 feigning ignorance.
In response to the above submissions, counsel for the respondent strongly submitted that the claimant was dismissed after an express written admission by the claimant. Counsel argued that in his written statement PEX J on pages 43 and 44 of the claimant’s trial bundle, the claimant unequivocally admitted the allegations. Counsel relied on KABOJJA INTERNATIONL SCHOOL VS GODFREY OYESIGYE L.D.A NO. 003/2015.
According to counsel, commission of the offence was a fundamental breach of the contract as per clause 8(b) (xi) and (x) of the contract of service which also amounted to disobedience of lawful instructions by the employer to the employee.
He argued that as per RW1 testimony an internal memo exhibit REX3, time of opening and closing was clear and staff were advised to follow the reporting time and as such this was part and parcel of the employment contract of the claimant.
Relying on Ebiju James Vs Umeme Ltd. HCCS No. 0133/2012, counsel strongly argued that one isolated act of misconduct was sufficient to justify summary dismissal and that time keeping was an essential issue in the contract of the claimant and that coming early was prohibited by REX3 as a lawful instruction to staff.
Counsel submitted that in the absence of written permission and a medical certificate as stipulated under clause 8(b) of the contract of service, the claimant would not have secured permission for sickness and therefore reason for his coming late or absence from duty.
According to counsel, the claimant on 03rd, 04th, 07th, 08th, 10th, 21st, and 11th, 12th, 19th and 27th all of October 2018 and on 01st, 07th November 2018 the claimant in cross-examination was found to have gone out of office without permission as shown on the time card.
In counsel’s submission, the disciplinary hearing was conducted via correspondence and face to face over a period of time which was in compliance with the authority of DFCU Bank Limited Vs Donna Kamuli, Civil Appeal 121/2016 which held: “The hearing contemplated by Section 66 of the Employment Act, 2006 did not require an employer to hold a mini court. The hearing can be conducted either through correspondence or through face-to-face hearing…”
Counsel also relied on the authority of Grace Tibihikirra Makoko Vs Standard Chartered Bank (U) Ltd. LDR No. 315/2015.
Counsel argued that RW1, Swalik Kasibante was not chairperson of the disciplinary hearing and since the claimant did not object to his appearance on the panel he could not complain after the hearing as per ALEX METHODIOUS BWAYO VS DFCU BANK LTD. HCCS 78/2012.
DECISION OF COURT
The case for the claimant as we understood it, is that having been an employee of the respondent, he was dismissed from employment without the respondent complying with the requirements of Section 66 of the Employment Act which requires conduct of a fair hearing before termination of employment. He asserts that the disciplinary hearing conducted did not satisfy the principles of a fair hearing making the dismissal unlawful.
The case for the respondent as we understand it, is that the claimant fundamentally breached his contract of service by reporting too early to office contrary to instruction of his employer, by reporting late to work and leaving early without permission and by absenting himself from work without permission. The respondent asserts that the instruction relating to reporting time was a lawful instruction to the claimant and that breach of the same tantamounted to insubordination calling for dismissal of the claimant. The respondent’s case is that a disciplinary hearing need not be equivalent to a court hearing since the former can be done by correspondence and face to face which was the case in the instant case.
We have listened carefully to the evidence of both the claimant and the respondent in cross-examination. We have also carefully perused the written witness statements of both parties while at the same time we have studied the submissions of both counsel together with the legal authorities attached thereto.
The right to a hearing is guaranteed in the supreme law of our land, the constitution, in Article 42 in the following terms.
“Any person appearing before any administrative official or body has a right to be treated justly and fairly and shall have a right to apply to a court of law in respect of any administrative decision taken against him or her.”
Article 44(c) of the same constitution provides that the right to a fair hearing cannot be derogated from.
The case of Ebiju James Vs Umeme Ltd. HCCS 0133/2012 provides guidelines of what constitutes a fair hearing as follows.
- Notice of allegations against the plaintiff was served on him and a sufficient time allowed for the plaintiff to prepare a defense.
- The notice should set out clearly what the allegations against the plaintiff and his right at the oral hearing were. Such rights would include the right to respond to the allegations against him orally and/or in writing, the right to be accompanied at the hearing and the right to cross-examine the defendant’s witnesses or call witnesses of his own.
- The plaintiff should be given chance to appear and present his case before an impartial committee in charge of disciplinary issues of the defendant.
Section 66 of the Employment Act provides for a notification of a hearing to an employee before terminating his/her services on grounds of misconduct or poor performance and explanation of a reason for termination as well as entitlement of the employee to a person of his choice to be present. The Section provides also for consideration of the representations of the employee concerning the misconduct or poor performance.
It was clear in the presentation of the claimant’s evidence that he was aware of letters dated 12/5/2014 and 7/11/2016. These letters marked as REX4 and REX6 attached to RW1’s testimony are warnings about reporting on duty late and leaving duty station early respectively. On the letter dated 12/5/2014 the claimant endorsed thereon
“Please for all the days I have come earlier than the recommended time of 8.30.
The letter dated 7/11/2016 required the claimant to hand in a written explanation as to why on 4/11/2016 he appeared on duty but left early only to re appear at 4pm. The letter suggested that if the claimant did not write an explanation within 24 hours management would take serious disciplinary action.
On 14/11/2016 a letter of suspension without pay for 7 days was written but the claimant claimed in his evidence that the suspension was oral and that this letter was handed over to him on 22/11/2016 when the suspension was ending.
On 29/11/2018, 2 years later, a machine recorded attendance data was extracted showing late reporting as well as early reporting on duty by the claimant and the claimant was asked to explain before 1/12/2018. The claimant in his evidence testified that he had earlier, on 26th Nov. 2018 offered an explanation arising from an email questioning his early reporting on duty and his moving out before closing time. In response to the email, he stated:
“In response to the email of Mr. Rajiv, I would like to let the concerned that I have Children – 7 in number whom I drop at Victoria Nile School 6.30 a.m and 7.00a.m. so that forced me to reach office early in the morning. Early on daily basis you find me in office doing office work and some few weeks I have been very sick of the kidney and a number of claims have been forwarded to Mr. Rajiv for re-imbursement approval some medical documents which got from Norvic Hospital are still lying with me of which if required can produce to him for certainty …….
This explanation was not satisfactory and so the claimant was invited on 3/12/2018 to a disciplinary hearing to take place on 4/12/2018.
Whereas REX 13 attached to the witness statement of RW1 is recorded as minutes of the Disciplinary hearing, exhibit PEX M and PEX L are taken by the claimant to be a transcribed audio recording of what transpired at the disciplinary hearing.
The invitation to a disciplinary meeting referred to a notice to show cause dated 29/11/2018 and sought attendance of the claimant on 4/12/2018 giving the claimant 4 days within which to prepare his defence.
However, the claimant received the notice on the 3/11/2018 as evidenced by the date endorsed on the hearing invitation which means the claimant actually had only 1 day to prepare for his defence.
We do not think that by any stretch of imagination this was sufficient time for the claimant to prepare his defense. It seems to us that the respondent considered the date 29th Nov 2018 to be the effective date for the claimant to start preparing his defence to the charges on 4/12/2018. But this cannot be said to be the position since the respondent already thought the explanation given was not sufficient implying there was need for the claimant to provide more information, more aspects of his defence at the hearing on 4/12/2018, in which case 1 day as already intimated could not be sufficient.
Consequently, the aspect of availing sufficient time to an employee to defend the charges as spelt out in the EBIJU JAMES VS UMEME case (supra) was breached in the instant case.
We do not accept the contention of counsel for the respondent that a letter dated 28/05/2007 marked REX 2 and that of 12/05/2014 marked REX 4 constituted a process of a fair hearing via correspondence as enunciated in the case DFCU VS Donna Kamuli (supra).
These letters were not appraisal sessions as was the case in the Donna Kamuli case. REX 2 was a letter alleging that the claimant had not attended to duty on 27/4/2007 and asked him to explain why management should not terminate his services. Nothing shows that the claimant received the letter or that thereafter some action was taken by management, until 2018, 11 years later, when the respondent sought to make it part of the disciplinary process. We think this was stretching the disciplinary process unnecessarily too far and the letterS could not be part of the process.
REX 4 dated 12/5/2015 is a warning against late coming on 1st, 12th, 11th and 15th of March 2014 and it is clearly a first warning to which the claimant endorsed that on the dates in question he would be at the office earlier than the recommended time. We just cannot understand how this could constitute part of the disciplinary process, within the meaning of a hearing envisaged by the case of DFCU VS Donna Kamuli (Supra).
We entirely agree with counsel for the respondent that in accordance with the holding in Kabojja International School Vs Godfrey Oyesigye Labour Dispute Appeal No. 003/2015 an admission is enough to entitle the employer to summarily terminate the employee and a contention that such employee should be subjected to a hearing is rendered redundant after an employee admits his misconduct.
The respondent argued strongly that, REX 3 constituted a fundamental term of the contract of service relating to reporting and closing time of the respondent company and that the admission on REX 4 of the claimant that he came late was sufficient to terminate him as was in the KABOJJA CASE above mentioned. As already noted above REX 4 is a warning letter onto which the claimant endorsed a denial that on the days mentioned therein he came late but rather came to work earlier than recommended. Nothing suggests on the endorsement that the claimant admitted coming late and the submission of an admission while relying on the KABOJJA CASE was therefore misplaced.
Although counsel for the respondent tried to dissuade us from believing the transcribed audio disciplinary proceedings for the reason that they were not complete, we find the transcribed version of the proceedings more reliable than the proceedings exhibited by the respondent as REX 13. This is because whereas REX 13 proceedings are in reported speech as to what transpired during the proceedings, the part of the proceedings that was transcribed shows what each of the participants actually said including what the claimant himself said in answer to certain questions. Whereas we have already found out that there was no admission of any wrong doing by the claimant, the disciplinary report in REX 13 in a reported manner states that the claimant admitted the charges. The transcribed proceedings on the other hand, at least for the part that is transcribed, shows the claimant admitting reporting earlier to office than the time recommended but denies going out without permission.
Although the respondent seemed to take issue with the claimant for coming early to work, we do not seem to appreciate any reason for penalizing an employee for reporting to work earlier than the official time unless there was an express instruction and for particular reasons given to such employee. Although REX 3 provides for reporting time as 08.15am prompt from Monday to Friday and 08.45am prompt on Saturdays, and clogging off at 5.00pm from Monday to Friday and 1.00pm Saturday, the same Internal Memo does not particularly prohibit for any reason somebody coming to office earlier. To our understanding unless the contrary is provided for, the time of reporting to work and leaving work is to maximize the production capacity of labour and an employee, unless otherwise prohibited, may on his own provide extra time for maximization of his capacity, sometimes so as to excel at his/her job. The question is why would any employer penalize such an employee?
It is our understanding that the cause of the disciplinary hearing was information from the recording system that on certain dates the claimant reported earlier (REX 9) and on other dates he reported late (REX 10).
For the above reasons, and in the circumstances of this case, we do find that the charges of coming to work earlier than official time were misplaced and could not arise.
As for coming late to work the claimant on page 44 and by exhibit marked PEX 5 explained.
“attendance recording system data shown by the machine comes as a result of me falling sick and after passing over the communication to my boss about the time of reporting at office.
I have submitted a number of bills for reimbursement and some other bills are also attached herewith for your approval as company rules…..”
On careful perusal of REX 13, minutes of the disciplinary hearing, they do not reveal the full testimony of the claimant. The first page of the minutes provides for this testimony in serial numbers and No. 5 states
“5. That on occasions when he reports late on duty, he always informed his immediate supervisor and overlooked the Human Resource Department because he was not it
In our view the above suggest that more information about the testimony was left out of the minutes since the sentence is not complete. The report shows that the Senior Executive Human Resource Manager denied ever receiving documentation from the claimant about his medical treatment, but nothing suggests in the minutes that the claimant’s immediate supervisor denied ever giving him permission. The supervisor is not revealed as having attended the disciplinary hearing.
Although Patrick Mugeni and Mirembe Janet are listed as witnesses they are at the same time listed as members of the disciplinary committee and nothing suggests in the minutes that they gave any evidence against the claimant.
Mr. Swalik Kasibante listed as a management representative is at the same time recorded to have given remarks as a member of the disciplinary committee.
We have noted that the committee’s findings were based on observations as follows:
- The accused claim he has medical notes presented to panel however the panel has made critical analysis that they don’t tally with the dates noted in the show cause.
- The medical notes presented before the panel had not been submitted to HR Department earlier.
- He failed to communicate to the concerned offices regarding reckless movement in and out yet he is aware of the policy.
- Reviewing his file still has similar issues of late coming and warning in the past an indication that he has failed to change.
- The accused has issues of insubordination i.e. always answers to his superior arrogantly i.e. his co-employee Ms. Janet Mirembe informed the panel that he had that problem of being disrespectful to others.
- Mr. Mugeni and Barbra observed that Mr. Batwala was not apologetic at all and very arrogant while responding to panel.
It is clear to us that the above observations are not supported by evidence during the hearing. The minutes do not show the comparison made between the medical notes and the dates of absence from duty so as to reach a conclusion that the claimant was not sick at the time he was absent, given that his immediate boss did not give evidence or was not part of the disciplinary hearing. Whereas we appreciate and take note of the decision of DFCU Bank Vs Donna Kamuli (Supra) that a disciplinary commitee is not a mini court, we are confident that the same case does not say that a disciplinary committee need not follow any of the guidelines set out in the Ebiju James Vs Umeme case.
Accordingly, it is our finding that the disciplinary proceedings having not complied with the guidelines as prescribed by the case of Ebiju James (supra) and Section 66 of the Employment Act, the claimant was unlawfully and unfairly terminated.
The first issue is resolved in the affirmative.
The second issue is: what remedies are available?
The claimant prayed for various remedies as follows:
- A declaration that his contract was unlawfully and unfairly terminated.
The effect of the above discussion is that such a declaration is granted and so be it.
- Special Damages:
Whereas counsel for the claimant submitted that 15,000,000/= as special damages stated in the claimant’s witness statement was not challenged by the respondent and should be awarded, counsel for the respondent submitted that such sum was not pleaded in the claim and that what was pleaded was 15,044,400. According to counsel for the respondent a claim of 15,000,000/= is a departure from pleadings made without amendment and therefore not permissible since the same was not even proved during the hearing. We agree that special damages must not only be pleaded but must also be proved by adducing evidence. The case of DFCU VS Donna Kamuli (supra) is authority for the legal proposition that a party cannot be granted relief which it has not claimed in the plaint or claim and that a witness statement does not amount or constitute a pleading but is evidence in proof of matters pleaded.
Pleadings under paragraph 3 of the memorandum of claim provide for five categories of special damages which include the following
- 3,223,800/= as payment for 3 months in lieu of notice of termination.
Section 58 of the Employment Act provides for notice periods and the claimant qualified for 3 months since he worked for more than 10- years. By letter dated 16/4/2018, PEXE at page 29 of the claimant’s trial bundle salary was raised to 716,400/= per month. Therefore 3 months entitlement is 2,149,200/=.
- 4,298,400/= as leave arrears from 2015 -2018. This court has held in the cases of Edace Michael Vs Watoto Child Care Ministries, Labour Dispute Appeal 16/2015 and Mbiika Dennis Vs Centenary Bank LDC 23/2014 that a claimant is only entitled to payment in lieu of leave if he/she shows court that he/she applied for leave and leave was rejected by the respondent. In the instant case such evidence is not on record. Accordingly, this prayer is denied.
- 2,170,000 as travel allowance from 2015-2018. No evidence as proof of this entitlement was provided by the claimant. It is denied.
- 255,000/= unrefunded medical bills. Evidence of medical bills was provided in the trial bundle from page 52 and in the absence of an objection from the respondent, 255,000/= is allowed.
- 15,044,400/= as terminal benefits from 1998-2018.
The claimant was under an obligation to provide evidence as to how this figure emanates from his employment as terminal benefits. The fact that the respondent did not raise objection to the same did not discharge the burden of the claimant to prove the same as it constituted part of special damages. Accordingly, it is denied.
- General Damages
These are damages estimated by the court in its discretion, to be reasonably indicative of reinstating the successful litigant into the original position he/she would be if he/she had not suffered at the instance of the unsuccessful litigant.
Special damages are not meant to be a profit obtainable from litigation. The claimant earned 716,400 at the time of his termination and had worked for the respondent for over 20 years. By the time he testified in court he was 48 years and had an average active life in Employment of over 12 years.
Given the nature of his work and the circumstances surrounding his termination we award him 15 million as general damages.
- Costs and interest
Given the nature of our currency which has a certain percentage of inflation, the above awarded sums shall attract an interest rate of 15% from the date of this Award until payment in full. No order as to costs is made
Delivered & Signed by:
- Hon. Chief Judge Ruhinda Asaph Ntengye ………………….
- Hon. Lady Justice Linda Tumusiime Mugisha ………………….
- Mr. Bwire John Abraham …………………….
- Mr. Mavunwa Edson Han …………………….
- Ms. Julian Nyachwo …………………….