Wakilii

Tindyebwa and Another v Kabale University (Labour Dispute Reference No. 156 of 2018)

Industrial Court · [2022] UGIC 37 · 2022 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Labour dispute reference arising from non-renewal of fixed-term employment contract following transformation of university from private to public institution
Decision
Claimant awarded salary differential for unlawful retention on old salary scale; all other claims dismissed; fixed-term contract expired lawfully by effluxion of time

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that when a university transforms from private to public ownership, Employment Act s.28(2) requires automatic transfer of subsisting employment contracts to the new entity with the same duration but permits variation of terms and conditions to align with the new public service structure. The employer's retention of the claimant on the old salary scale after validation under the new structure was unlawful. However, the employer was under no obligation to renew a fixed-term contract upon expiry or to provide reasons for non-renewal, and the non-renewal did not constitute unfair termination.

Outcome

Claimant awarded salary differential for unlawful retention on old salary scale; all other claims dismissed; fixed-term contract expired lawfully by effluxion of time

Facts

The 1st Claimant was appointed as a part-time lecturer at Kabale University in September 2009 and became a full-time lecturer on a renewable contract from 1 September 2013 to 1 August 2017. The university transformed from a private to a public institution with effect from 1 July 2016. The 1st Claimant was validated and retained as a lecturer until the expiry of his contract on 31 August 2017. Upon expiry, he applied for re-appointment but the appointments board declined to appoint him on grounds that he did not have the requisite qualifications (a completed PhD) for the position under the new public university structure. The 1st Claimant contended that he was victimized and discriminated against because of his participation in activities of the 2nd Claimant (the University Professional Academic Staff Union). He alleged that after validation he was retained on the old KAB salary scale instead of being placed on the new M-scale applicable to public universities, and that his contract was not renewed due to his union activities rather than lack of qualifications.

Issues

  1. Whether the Respondent's decision of transferring the 1st Claimant's contract of employment from a private to a public University was done in accordance with the law and/or with legitimate expectation of new terms and conditions offered.
  2. Whether the Respondent's decision not to renew the 1st Claimant's contract was unfair, ultra vires and unlawful.
  3. Whether the Respondent has a right not to renew the 1st Claimant's contract and whether the decision not to renew the contract was unfair.
  4. Whether the Respondent's actions and treatment against the 1st Claimant amounted to infringement of his rights and freedoms.
  5. Whether the actions of the Respondent against the 2nd Claimant's Chairperson at the Respondent's campus amounted to victimization.
  6. Whether the actions and omissions of the Respondent against the 2nd Claimant was in breach of the rights of its members to belong to a labour union of their choice.
  7. Whether the Claimants are entitled to remedies sought.

Orders

  • The Claimant is entitled to payment of the difference in salary between what he was paid under the KAB scale and the salary he was entitled to under the new structure from the date of validation to 30/08/2017.
  • The Claimant is awarded UGX 42,441,984 being the salary differential.
  • Interest at 15% per annum shall accrue on the pecuniary award from the date of filing until payment in full.
  • The prayer to declare the non-renewal of the 1st Claimant's contract unlawful is denied.
  • The claim for two months' salary in lieu of notice totaling UGX 12,111,894 is denied.
  • The prayer for severance pay is denied.
  • The prayer for payment of the outstanding balance on the Claimant's loan is denied.
  • The prayer to order payment of UGX 200,000,000 to the 2nd Claimant as general damages for discrimination and inconvenience is denied.
  • No order as to costs.

Rules and key headnotes

Transfer of Business — Transfer of Contracts of Service — Effect on Duration and Terms
Where a trade or business is transferred in whole or in part, Employment Act s.28(2) provides that the contracts of service of all employees employed at the date of transfer shall automatically be transferred to the transferee, and all rights and obligations between each employee and the transferee shall continue to apply as if they had been rights and obligations concluded between the employee and the transferee. The duration of the contract as negotiated with the old employer is carried in whole to the new employer and continues as if it had been negotiated between the employee and the new employer. The wording of s.28 does not envisage any variation of the duration of the contract, though it does not preclude the new employer from varying the terms and conditions to the advantage of the transferred employee.
Transfer of Business — Validation of Staff — Variation of Terms and Conditions
When a private university transforms into a public university, the new establishment is placed under the ambit of the Universities and Other Tertiary Institutions Act 2001 and regulations thereunder, necessitating validation of all staff who opt to transfer to place them in positions which they qualify for under the new structure with new terms and conditions of service. The change in terms and conditions does not affect the duration of the contract. Upon validation and placement under the new structure, the terms and conditions of the transferred contract must be varied in accordance with the new structure.
Fixed-Term Contracts — Expiry — Obligation to Renew
An employer is under no obligation to renew a fixed-term contract after its expiry or to give a reason for not renewing it, unless the contract expressly provides that it is renewable. Where a contract of service is a contract for a fixed term and ends with the expiry of the fixed term and is not renewed within a period of one week from the date of expiry on the same terms or terms not less favourable to the employee, the contract is deemed to be terminated under Employment Act s.65(1)(b).
Fixed-Term Contracts — Expiry — Notice Requirements
Where a contract of employment terminates by effluxion of time, there is no requirement for the employer to give the employee any notice of non-renewal. The contract expires by operation of law.
Employer's Discretion — Terms and Conditions of Service
An employer has discretion to determine the terms and conditions of service (the work to be done, who to do the work, from where it should be done) and for how long, and when the employee agrees to do the work in accordance with the terms and conditions set, the courts cannot interfere with the employer's discretion regarding their employees, unless they are in breach of the employees' rights under their contracts of employment and relevant law.

Legislation cited (8)

  • Employment Act No. 6 of 2006 s.28
  • Employment Act No. 6 of 2006 s.28(1)
  • Employment Act No. 6 of 2006 s.28(2)
  • Employment Act No. 6 of 2006 s.28(3)
  • Employment Act No. 6 of 2006 s.65(1)(b)
  • Employment Act No. 6 of 2006 s.73(1)
  • Employment Act No. 6 of 2006 s.2
  • Universities and Other Tertiary Institutions Act 2001

Cases cited (7)

  • Hilda Musinguzi v Stanbic Bank (U) Ltd (Supreme Court Civil Appeal No. 5 of 2016)
  • Donna Kamuli v DFCU Bank (Labour Claim No. 02 of 2015)
  • Florence Mufumba v Uganda Development Bank (Labour Dispute Claim No. 138 of 2014)
  • Bank of Uganda v Joseph Kibuuka and Others (Court of Appeal Civil Appeal No. 281 of 2016)
  • ZTE Uganda Limited v Sseyiga Hermenegild and Others (Labour Dispute Appeal No. 24 of 2019)
  • Charles Lubowa v Makerere University (Labour Dispute Claim No. 030 of 2017)
  • Irene Nassna v Equity Bank Ltd (Labour Dispute Claim No. 6 of 2014)

Full judgment

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

Tindyebwa_and_Another_v_Kabale_University_(Labour_Dispute_Reference_No._156_of_2018)_[2022]_UGIC_37_(7_December_2022)
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.