Wakilii

Kwagala Balesse v Solton Telmec Uganda (Labour Dispute Claim 13 of 2017)

Industrial Court · [2020] UGIC 31 · 2020 Judgment for Claimant AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance labour dispute claim arising from High Court Civil Suit No. 0233 of 2017
Decision
Claimant's claim succeeded; employer ordered to pay damages and notice in lieu

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Industrial Court held that the employer failed to prove the alleged misconduct and failed to comply with mandatory procedural requirements under the Employment Act 2006 s.66 before dismissing the employee. The dismissal was wrongful and unlawful. The employee was entitled to payment in lieu of notice and general damages but not severance pay as it was not pleaded.

Outcome

Claimant's claim succeeded; employer ordered to pay damages and notice in lieu

Facts

The claimant was employed by the respondent company on 1 August 2015 as a Planning and Survey Officer earning UGX 900,000, later increased to UGX 1,200,000. On 1 May 2017, he was summarily dismissed on grounds that he made abusive and disrespectful comments on a social media platform that bordered on incitement and threatened harmonious working relations. The claimant denied making the comments and contended he was condemned unheard. The respondent's Human Resources Manager testified that he was informed of the alleged comments by another manager, Wesley Songok, but Songok was not called as a witness. No documentary evidence of the alleged comments was produced. The claimant had previously received one warning letter for late coming. The respondent did not subject the claimant to any disciplinary proceedings before dismissal, despite its Human Resources Manual providing for an elaborate disciplinary process.

Issues

  1. Whether the Respondent was entitled to dismiss the claimant.
  2. Whether the Claimant's dismissal was unlawful and or unfair.
  3. Whether the Claimant is entitled to any remedies.

Orders

  • The Claimant was unlawfully and wrongfully terminated.
  • An award of UGX 1,200,000 in lieu of notice.
  • An award of UGX 24,000,000 as General Damages.
  • Interest of 15% is awarded on the pecuniary awards from date of judgment until payment in full.
  • No order as to costs.

Rules and key headnotes

Unfair Dismissal — Burden of Proof on Employer
Under the Employment Act 2006 s.68, in any claim arising out of termination, the employer must prove the reason or reasons for dismissal, and where the employer fails to do so, the dismissal shall be deemed to have been unfair.
Summary Dismissal — Procedural Requirements — Right to a Hearing
Section 66 of the Employment Act 2006 makes it mandatory for an employer to, before reaching a decision to dismiss an employee, explain to the employee the reason for which dismissal is being considered, hear and consider any representations the employee may make, and give the employee reasonable time to prepare such representations. This requirement applies even where the dismissal is for gross misconduct justifying summary dismissal.
Summary Dismissal — Fundamental Breach — Standard of Proof
Where an employer alleges that an employee made abusive comments on social media justifying summary dismissal, the employer must adduce credible evidence of the alleged misconduct. Hearsay evidence from a manager who was not called as a witness, without documentary evidence of the alleged comments or a record of any complaint, is insufficient to prove fundamental breach of contract.
Disciplinary Procedures — Compliance with Internal Policies
Where an employer's Human Resources Manual provides that an employee accused of gross misconduct will normally be suspended on full pay while the company investigates the alleged offence and will be required to attend a disciplinary interview, the employer must comply with this procedure. Urgency to safeguard business interests does not justify total disregard for mandatory disciplinary procedures.
Remedies — Severance Pay — Pleadings
A court cannot make an award for a claim that was not pleaded. Submissions of counsel do not amount to a pleading. Where an employee does not plead severance pay in the memorandum of claim, the court cannot award it even if the employee would otherwise be entitled to it under the Employment Act.

Legislation cited (9)

Cases cited (15)

  • Magara Olive v Umeme Ltd (Civil Suit No. 39 of 2010)
  • Jabi v Mbale Municipal Council (1975) HCB 191
  • Eng. Pascal R. Gakyaro v Civil Aviation Authority (Civil Appeal No. 60 of 2006)
  • Batuli George William v Nakasongola District Council (Civil Suit No. 372 of 2007)
  • Hilda Musinguzi v Stanbic Bank (U) Limited (Civil Appeal No. 5 of 2016)
  • Uganda Development Bank v Florence Mufumbo (Civil Appeal No. 241 of 2015)
  • Odeke Francis & 5 Others v Ibero (U) Ltd (Civil Appeal No. 100 of 2011)
  • Barclays Bank of Uganda v Godfrey Mubiru (Civil Appeal No. 1 of 1998)
  • Hilda Musinguzi v Stanbic Bank (U) Ltd (Supreme Court Civil Appeal No. 5 of 2016)
  • Stanbic Bank v Kiyimba Mutale (Supreme Court Civil Appeal No. 2 of 2010)
  • Kasingye Tumuhirwe Genevieve v Housing Finance Bank (Labour Dispute Reference No. 115 of 2016)
  • Donna Kamuli v DFCU Bank (Labour Dispute Claim No. 2 of 2015)
  • DFCU v Donna Kamuli (Civil Appeal No. 121 of 2016)
  • Batuli Gearge Vs Nakasongola District Local Council
  • Issa Baluku Vs SBI INT Holdings

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Kwagala_Balesse_v_Solton_Telmec_Uganda_(Labour_Dispute_Claim_13_of_2017)_[2020]_UGIC_31_(30_October_2020)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.