Akurut v Amuria District Local Government (Civil Suit 2 of 2019) [2023] UGHCCD 237 (24 August 2023)

Full Case Text

The Republic of Uganda In The High Court of Uganda at Soroti Civil Suit No. 0002 of 2019

Akurut Betty ===================================

Versus

Amuria District Local Government ================= Defendant

## Before: Hon. Justice Dr Henry Peter Adonyo

## Judgement

## 1. Background:

The plaintiff filed this suit against the defendant for unlawful termination $20$ and breach of contract wherein she sought payment of salary arrears, a declaration that her termination was unlawful, payment of special and general damages, recovery of interest and costs of the suit.

She claims that at all material times she was an employee of the defendant

from the time she got appointed as a nursing officer on the $\rm 13^{th}$ of February 25 2013 and by virtue of this appointment she was entitled to a monthly salary of Ugx. $811,609/=$ .

Upon appointment she was posted to Obalanga HC III and she obliged her posting instructions dated 14th February 2013, however, that starting November 2013 to April 2014 she ceased receiving salary amounting to

30 Ugx. 10,125,000/= and in this period she also got transferred to

Kapelebyong HC IV by circular dated 30th December but she did not have $\mathsf{S}$ money to help her settle in her work place.

That she committedly visited the defendant's office seeking help in getting her salary arrears but she never got any positive response to date. In the circumstances of her operation made her fail to discharge her duties a fact she communicated to the defendant.

- The plaintiff was then summoned before the Amuria District Service Commission on the 12th August 2014 where she was charged with abscondment and insubordination, she was eventually terminated without the approval and resolution of Amuria District Local Government. - The defendant in its written statement of defence denied the above 15 allegations and contended that the plaintiff was appointed on probation as a Nursing officer on 13th February 2013 and she was posted in Obalanga Health Centre III and on 30th December 2013 in a bid to balance staff development for effective service delivery, she was transferred to Kapelebyong Health Centre IV but she did not heed to the transfer and 20

never reported to Kapelebyong.

$10$

That she stopped working at Obalanga Health Centre III upon receiving transfer instructions but would occasionally visit the health facility and intimidate other health workers.

- That in November 2013 during the migration of the staff payroll to IPPS 25 system the officer was among 106 staff that missed salaries and it require each individual to fill the pay change forms which the plaintiff never did. That the interventions by the Labour Officer Soroti and the Uganda Human Rights Commission failed since the plaintiff failed to comply with the - resolutions made. 30

That on the 21st August 2014 the District Disciplinary Committee $\mathsf{S}$ summoned and gave the plaintiff a fair hearing but she assured the committee of her intention of not reporting to the new station which she did. That the plaintiff abandoned her work voluntarily and upon deletion from the payroll, the plaintiff ought to have applied for reactivation but she

chose not to. $10$

That the plaintiff's claim for salary arrears is too remote since salary is paid to a serving officer for work executed but the plaintiff is not entitled since she was drawing multiple salaries from the consolidated fund during that period.

That the plaintiff even reported the defendant to IGG for irregular deletion 15 from government payroll but they were cleared of any wrongdoing.

2. Representation:

The plaintiff was represented by M/s Isodo & Co. Advocates and the defendant by the Attorney General Chambers Soroti Regional Office. Both parties heeded court's directions and filed their written submissions which

are on court record.

The following issues were raised during scheduling:

- a. Whether the Plaintiff's termination was lawful? - b. Whether the plaintiff is entitled to the arrears claimed in special

damages? 25

c. What remedies are available to the parties?

3. Determination:

In civil matters like the instant case, the burden of proof rests on the plaintiff and the standard of proof is on a balance of probabilities.

According to Section 101 of the Evidence Act Cap.6 Laws of Uganda, 30

(1) Whoever desires any court to give judgment as to any legal right or $\overline{5}$ liability dependent

on the existence of facts, which he or she asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact, it is said that the burden of

proof lies on that person.

Section 102 of the Evidence Act goes on to provide that

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

Section 103 further provides that the burden of proof as to any particular 15 fact lies on that person who wishes the court to believe in its existence unless it is provided by any law that proof of that fact shall lie on any particular person.

The plaintiff was her only witness and the defendant also led only one witness called Adoko George. $20$

## a. Issue 1: Whether the Plaintiff's termination was lawful?

Counsel for the plaintiff submitted that the law regulating employment in Uganda is diverse and includes the common law principles.

That Article 200 of the Constitution 1995 creates and designates the District Service Commission as the only entity mandated to appoint, 25 confirm, exercise disciplinary control and/ or remove persons from office. Article 173(b) of the Constitution of Uganda 1995 is to the effect that, a public officer shall not be dismissed or removed from office or reduced in rank or otherwise punished without just cause. That this in effect means 30

that no public servant shall be handled casually.

- He further submitted that it is also well settled law that before any civil $\overline{5}$ servant is disciplined or dismissed from public service, the victim will first have to be formally charged, given ample time to respond, appear before the duly mandated entity to defend herself, and face off with her accusers before a decision can be made. - That this is in adherence to the constitutional right to a fair hearing 10 enshrined under Article 28(1) of the Constitution of Uganda 1995; and listed as non-derogable in any event under Article 44(e) of the Constitution. Counsel submitted that under Section 55(4) of the Local Government Act, the District Service Commission in the performance of any of its functions - (including disciplining or dismissing an employee), must act only upon the 15 request and submission of the relevant council. Failure to adhere to this has been found to render the impugned decision null and void. [See Charles Akovo vs. Kamuli District Local Council Court of Appeal Civil Appeal No. 08/2011]. - Counsel basing on the above submitted that for the following reasons the 20 plaintiff was unlawfully terminated.

a) She was not invited and neither did she appear before the Amuria District Service Commission. She doesn't know what they discussed, neither does she know her accuser or get to face off with him or her. She was condemned by the District Service Commission without being 25 accorded a fair hearing. It has variously been held that a decision arrived at without a fair hearing is null and void ab initio, and therefore of no consequence.

In *Charles Twagira Vs Uganda SCCA No. 27/2003*, it was held that;

"A fair trial, or fair hearing under Article 28 means that a party should be afforded an opportunity to inter alia hear the witnesses of the other side testify openly; that he should, if he chooses, challenge those witnesses by way of cross examination; that he should be given an opportunity to give his own evidence in his defense, that he should if he so wishes, call witnesses to support his case"

b) The Disciplinary Committee before whom the plaintiff appeared, did not have the mandate to hear and discipline her, as this is a reserve of the District Service Commission. Even if they did, the plaintiff never got to face and cross examine her accuser in that illegal exercise.

c) The plaintiff's trials attracted a lot of attention but the relevant council 15 that would have been the LCIII council of Obalanga Sub County, never handled this matter, neither did it submit to the District Service Commission. The Amuria District Council also never deliberated on this matter; instead it is the Chief Administration Officer who made a submission to the Amuria District Service Commission. This is in direct 20 breach of section 55(4) Local Government Act, which requires that the

District Service Commission can only execute its mandate upon the request and submission of the relevant local government council.

That in Charles Akoyo Supra, the Court of Appeal set aside the dismissal of the appellant for breaching Section 55(4) Supra.

That in Ailak Benjamin Vs Kumi District Local Government, C. S No. 009 of 2005, this Hon. Court held that the contravention of section 55(4) supra rendered that termination of the plaintiff unlawful, and set aside the termination.

$\mathsf{S}$

d) The termination of the plaintiff was handled in haste as the defendant $\mathsf{S}$ concentrated on petty official quarrels and discontent to terminate her employment. In counsel's opinion all these issues arose out of nonpayment of the plaintiff's salary for a long time and had the defendant sorted out this problem, this debacle would have been avoided. That as a

matter of fact, it is clear in paragraph 6 of DEX7 that instead of reinstating 10 the plaintiff to the pay roll, the defendant stood against it, stating that doing so was illegal.

Counsel finally submitted that the manner in which the plaintiff was terminated was so casual that it offended Article 173 (b) of the constitution

of Uganda 1995. 15

Counsel for the defendant in reply submitted that section 66 of the Employment Act provides that before an employer reaches a decision to dismiss an employee on the grounds of misconduct or poor performance shall explain to the employee the reason for which the employer is considering dismissal.

Counsel further submitted that section 67 of the same Act provides that section 66 does not apply where a dismissal brings an end a probationary contract.

That the plaintiff was still on probation when the defendant terminated her employment and though she was not entitled to a hearing per section 25

67, the District accorded a hearing.

That the plaintiff was summoned and appeared before the Disciplinary Committee of the District (Reward and Sanctions Committee) on 21st August 2014 and she confessed that she will not report to the new station

and demonstrated unwillingness to comply with any instructions. 30

- That the actions of the plaintiff when she appeared before the Disciplinary $\mathsf{S}$ Committee of the District (Reward and Sanctions Committee) prompted the committee to refer the complaint to the District Service Commission. Counsel submitted that before a disciplinary matter is referred to the District Service Commission, the accused employee is first summoned - before the Disciplinary Committee of the District (Reward and Sanctions 10 Committee) which is lawfully recognised under public service. That the Ministry of Public Service under Circular Standing Instrument No. 1 of 2011 issued the rewards and sanctions framework to guide the service in managing the process of rewarding excellence and sanctioning under - performance and as such the disciplinary committee where the plaintiff 15 appeared was lawfully in place.

Counsel further submitted that section 55(4) of the Local Government Act was amended by section 10 (b) the Local Government (Amendment) Act 2010 and the words "of relevant council" were substituted with the words

"by the accounting officer", as such the submissions by the plaintiff that the 20 District Council should make a submission to the District Service Commission is not applicable as it is the accounting officer who in this instance is the CAO.

Counsel finally submitted that the termination of the probation employment of the plaintiff was lawful because she was on probation 25 which can be terminated without according the plaintiff hearing, this notwithstanding the plaintiff was accorded a hearing by the Disciplinary Committee of the District (Reward and Sanctions Committee) which is a lawfully recognised.

That the District Council or Sub-county council do not have mandate to 30 handle disciplinary matters.

In rejoinder, counsel for the plaintiff submitted that the defendants in $\mathsf{S}$ buttressing their argument cited Sections 66 and 67 of the Employment Act, 2006 to argue that an employee dismissed while on probation is not entitled to a fair hearing.

Counsel argued that having been appointed on the 13/2/2013, the plaintiff duly served her 6 months' probation period as stated in the appointment 10 letter which period is provided for under Section 67(2) of the Employment Act.

Counsel relying on section 67(3) further submitted that there is no evidence on record to suggest that after the expiry of the plaintiff's probationary period, there was a unilateral extension or that she agreed to

15 an extension of the same.

That there is also no evidence that the defendant ever invited the plaintiff to a discussion to extend her probationary period.

He added that in view of the stern warning in Section 67 (3) Supra, the fact

that the plaintiff remained in service after the expiry of the six months, 20 implies that she was serving in a confirmed capacity despite not being given a confirmation letter, as the defendant could not issue her with another probationary appointment, or unilaterally extend it without the plaintiff's consent.

That this therefore brings the plaintiff under the ambit of Section 66 that $25$ demands that she should have been accorded a fair hearing. Counsel continued to submit that it is his well-considered view that section 67 supra, is inconsistent with Articles 28(1) and 44(c) of the Constitution of Uganda, 1995 which guarantee one the right to be heard. That by limiting

that right to only employees that are confirmed, the impugned section is 30 null and void to its extent of inconsistency in the terms of the Constitution which provides that all persons were equal before the law and cannot be $\mathsf{S}$ segregated against.

Regarding the plaintiff's appearance before the Disciplinary (Rewards & Sanctions) Committee of the defendant, counsel argued the Ministry of Public Service Circular Standing Instrument (CSI) No. 1/2011, was intended

to guide the process of rewarding excellence and sanctioning under 10 performance and not meant to have that committee take over the constitutional duties of the District Service Commission who are mandated to appoint, promote and dismiss public servants after according them a fair hearing. He maintained that the plaintiff was never heard by the DSC who

are constitutionally mandated to perform that task. 15

## Resolution:

The plaintiff claims that her termination was unlawful because she was granted a fair hearing as required by the law.

The plaintiff testifying as PW1 testified that on 13th February 2013 she was

appointed as a nursing officer by the defendant, she was posted to 20 Obalanga HC III and she obliged her posting instructions dated 14th February 2013, however, that starting November 2013 to April 2014 she ceased receiving salary.

In this period, she also got transferred to Kapelebyong HC IV by circular

dated 30th December but she did not have money to help her settle in her 25 work place.

That she committedly visited the defendant's office seeking help in getting her salary arrears but she never got any positive response to date. That in the circumstances of her operation made her fail to discharge her duties a

fact she communicated to the defendant. 30

- The plaintiff was then summoned before the Amuria District Service $\mathsf{S}$ Commission on the 12th August 2014 where she was charged with abscondment and insubordination, she was eventually terminated without the approval and resolution of Amuria District Local Government which makes her termination illegal. - During cross-examination she stated that the District Health Team stopped 10 her from working after she failed to report to Kapelebyong due to lack of transport.

However, when she got transport she reported, she added that she reported to Kapelebyong in 2016- after three years which was after her termination.

That she was not confirmed in the District Health Service of Amuria and she did not know that this was upon satisfactory completion of probation. That when issued with appointment letters she was referred to the Public Service Standing Orders to guide her employment in public service. That

before she received the letter of termination by Amuria DLG she was not $20$ aware that her services had been terminated.

She informed the Uganda Human Rights Commission that her services had been terminated in 2014. She stated that she did not resign from Kumi DLG where she was an enrolled nurse and she went to Amuria after applying

for a job as a nursing officer and when she got the job is when she left the 25 services of Kumi DLG.

She admitted that while working at Amuria she continued receiving salary from Kumi DLG but she did not inform them that she was still receiving their salary after she had left.

She admitted that she was invited for and attended the Amuria DLG 30 Disciplinary Committee meeting.

The defendant relied on DW1 Adoko George the Chief Administrative $\mathsf{S}$ Officer of Amuria DLG. He testified that as the CAO he has access to personal files of workers in Amuria and he had the privilege of perusing the plaintiff's file and is well versed with the facts surrounding her employment, behaviour and character.

That she was employed on probation as a nursing officer by Amuria District 10 Service Commission in 2013 and she was supposed to perform her duties diligently and in line with Government Standing Orders. When she was transferred to Kapelebyong health centre IV from Obalanga Health centre III she refused to report there and the Assistant DHO through a letter dated

- 9th May 2014 complained to the CAO Amuria regarding the character of 15 the plaintiff especially her behaviour. Due to the plaintiff's character she was summoned to appear before the Disciplinary committee of Amuria and she appeared, the Disciplinary Committee resolved that the complaints against the plaintiff which included abandonment, negligence - of duty and insubordination to be submitted to Amuria District Service 20 Commission for further action. The CAO then made a submission to Amuria District Service Commission submitting the plaintiff for disciplinary action. The District Service Commission directed the CAO Amuria DLG to issue a termination letter to the plaintiff, the CAO accordingly issued a termination - letter terminating the probation appointment of the plaintiff in service of 25 Amuria DLG. That all due processes were followed by the district before terminating the probation appointment of the plaintiff and she later wrote several letters to the CAO apologising for her behaviour.

That it was later discovered through an IGG report that the plaintiff while being employed with Amuria DLG was also employed with Kumi DLG.

- $\mathsf{S}$ During cross-examination he stated that the Amuria DSC acted on the submission of the CAO which was from the Disciplinary Committee. He did not know whether the persons who accused the plaintiff appeared before the disciplinary committee because he was not there. The plaintiff did not appear before the DSC. - First it needs to be established whether the plaintiff was still on probation 10 when her services were terminated.

PEX1 which is similar to DEX1 is an appointment letter for the plaintiff dated 13th February 2013. It indicates that the DSC appointed her on probation as a nursing officer in service of the defendant.

PEX2 which is similar to DEX2 are posting instructions dated 14th February 15 2013 to Obalanga Center III.

There is no letter confirming the plaintiff's appointment on record. The plaintiff was transferred from Obalanga Health Centre III to Kapelebyong Health Centre IV on 30th December 2013 per PEX4 and DEX3,

- per the plaintiff's testimony she did not report to this station till 2016. Thus 20 from the date of assumption of duty 26th February 2013 per PEX 3 to 30th December 2013 the plaintiff worked for approximately 10 months. The probationary period provided by the law and standing orders is six months which may be extended with the employee's consent. - Section 67(2) of the Employment Act provides that the maximum length of 25 a probationary period is six months, but it may be extended for a further period of not more than six months with the agreement of the employee. Section 67 (4) further provides that a contract for a probationary period may be terminated by either party by giving not less than fourteen days' - notice of termination, or by payment, by the employer to the employee, of 30 seven days' wages in lieu of notice.

The Uganda Public Service Standing Orders 2021 under section (A-d) $\mathsf{S}$ provide that this period is six months and can only be extended for another six months with agreement of the employee.

The employer is supposed to appraise an employee during their probation to determine whether at the end of the six months they will confirm their

appointment, terminate them or enter an agreement for another probationary period.

In this instance there is no evidence that the plaintiff was confirmed, fired or kept on extra probation after the expiry of six months.

In Nyakabwa J. Abwooli Vs Security 2000 Ltd, Labour Disputed No. 108/2014

(From HCCS 301/2010) as cited in Kaggwa v Plan International (Labour 15 Dispute Claim 175 of 2014) 2016 UGIC 2 (27 January 2016) it was observed that;

> "Probation is meant for the employer to observe and assess the employee as to the latter's suitability. The employer has a right after the period to extend the same, terminate the employment or confirm the same. Delaying confirmation of an employee to his detriment without any reason is not acceptable.........."

An employer keeping on an employee without clearly exercising any of the above options is taken to have confirmed the employee because the law is very clear on the length of a probation period.

I thus find that by the time the respondent terminated the plaintiff's employment, she had completed her probation and thereby been confirmed.

Having resolved that the plaintiff was no longer on probation, I will not delve into termination of probationary employment contracts under 30 section 67 (1) of the Employment Act.

![](0__page_13_Figure_11.jpeg)