Beinomugisha Boniface v Rakai Health Science Programme (Labour Dispute Claim 57 of 2016) [2010] UGIC 1 (13 September 2010)

# **THE REPUBLIC OF UGANDA THE INDUSTRIAL COURT OF UGANDA HOLDEN AT MASAKA LABOUR DISPUTE CLAIM. NO. 057 OF 2016** *(ARISING FROMHCT-06-CV-CS-0039 OF 2014)*

## **BETWEEN**

| BEINOMUGISHA<br>BONIFACE | CLAIMANT | |-----------------------------------------|------------| | AND | | | PROGRAMME<br>RAKAI<br>HEALTH<br>SCIENCE | RESPONDENT |

### **BEFORE**

- 1. Hon. Chief Judge Ruhinda Asaph Ntengye - 2. Hon. Lady Justice Linda Tumusiime Mugisha

## **PANELISTS**

- 1. Mr. Ebyau Fidel - 2. Ms. Harriet Nganzi Mugambwa - 3. Mr. F. X. Mubuuke

## **AWARD**

The claimant was employed by the respondent on a 2 year contract effective 19th day of July 2010 as <sup>a</sup> security guard.

On 18/11/2010, the claimant wrote to the Human Resource Manager of the respondent resigning from the organisation and said he would stop working on 20/12/2010

On 10/12/2010 he was required to give <sup>a</sup> statement to the police relating to theft of motorcycles belonging to the respondent and he was subsequently arrested, detained and charged. During or after trial the claimant did not go back to his employment.

The agreed issues are:

- 1) Whether the claimant was terminated or resigned from the respondent's employment. - 2) If so whether the termination was lawful - 3) Whether the claimant's prosecution was malicious - 4) Remedies available to the parties.

Under the contract of employment between the respondent and the claimant, the said contract could be terminated by referring to the provisions of the Human Resource Manual. The Human Resource Manual provided for not less than two weeks notice or cash payment in lieu of notice unless it was summary dismissal.

In the instant case it seems to us that nothing shows expressly that the respondent terminated the employment of the claimant. The claimant himself testified that he was <sup>a</sup> suspect in a theft case, was arrested, prosecuted and acquitted. He testified that after appearance in court he was never allowed to come back to duty as he was never deployed or given duty again.

The assertion of the claimant seems to suggest that the termination of his employment was as provided for under section 65 (i) (c) of the Employment Act which states

**"Where the contract of service is ended by the employee with or without. notice as a consequence of unreasonable conduct on the part of the' employer towards the employee".**

Evidence on record which was not controverted was that the claimant had resigned from his job by letter dated 18/11/2010 and the fact that the claimant wrote <sup>a</sup> resignation letter to the respondent was an agreed fact according to the Joint Scheduling Memorandum. In his evidence, the project Director of the respondent testified that the claimant opted to resign from the respondent's employment.

We do not find any evidence to suggest that the failure of the claimant to report for duty and his subsequent non-deployment by the respondent was <sup>a</sup> result of unreasonable conduct of the Employer in accordance with Section 65(l)(c) of the Employment Act cited above.

### **In Nyakabwa J. Abwooli Vs Security** 2000 **Ltd** (Labour Dispute 108/2014).

This court had this to say

**"It is our considered opinion that in order for the conduct of the Employer to be deemed unreasonable within the meaning of section 65(1)(2) above, such conduct must be illegal, injurious to the employee and make it impossible for the employee to continue working** "

We do not accept the contention of counsel for the claimant that charging and prosecuting the claimant with theft and not deploying him amounted to unreasonable conduct on the part of the respondent. The claimant having resigned his job without being coerced, his none deployment could not by any stretch of imagination be considered unreasonable conduct on the part of the respondent.

It is the position of this court that where an employee willingly and without any form of coercion resigns or terminates his own employment, the employer is under no obligation to accept or reject such resignation, within the time anticipated by such employee. The employee ordinarily will process his /her exit from employment and leave.

However should the employee after filing his resignation not process his exit and the employee does nothing about it as the employee continues to work, the employer is estopped from denying that such employee is still in employment.

It seems to us in the instant case, that before the occurrence of the theft, the claimant had planned to get out^the employment of the respondent. This is because the evidence on record suggests that the theft occurred on 9th December 2010 yet the claimant had written the resignation on 11th November 2010. It is more probable that by the time of theft of the motorcycles, the claimant had secured <sup>a</sup> better job with his current employer.

It is also the position of this court that where an employee requests permission for resignation, the employer is under an obligation to either accept or reject the resignation and should the employer do neither of the options and the employee keeps being assigned work or doing work as if nothing happened, the employer will be assumed to have rejected the resignation.

In the instant case, the claimant in his resignation letter stated

I "I hereby regret to inform you that <sup>I</sup> have resigned from duty wish to stop my duties on 20th December 2010."

In the same letter he thanked the administration of the respondent and staff for the good working relationship.

We are of the considered opinion that the claimant did not request for permission to resign. He ought to have processed his exit by the 20th December 2010. The respondent was not under any obligation to either accept or reject the resignation and therefore the acceptance done by the respondent on 22/11/2010 was only intended to quicken the exit process and it had no legal consequences relating to whether or not the claimant was to keep his employment.

We agree with counsel for the respondent's submission that the claimant had made up his mind and he was just informing his employer about his regrettable decision to leave employment. The fact that the letter of resignation was only <sup>3</sup> months after securing the employment seems to suggest, as counsel for the respondent intimated in his submission, that the claimant out rightly expressed his

**3**

lack of interest in working with the respondent, the reason he did not bother to pick or find out if there was any letter accepting or rejecting the resignation.

We are satisfied that the claimant was not terminated but resigned for better pastures which he eventually captured. He had no business claiming that he was unlawfully terminated.

It is our view that we do not indulge into the merits of the 3rd issue. The mandate of the court does not extend to determining whether or not <sup>a</sup> prosecution was malicious. Neither does it have anything to do with awarding damages arising from such cause. We shall not therefore consider submission of counsel on this matter. <sup>1</sup>

Malicious prosecution in our view is <sup>a</sup> distinct cause of action which need not be| filed with the Industrial Court but rather with the Civil Division of the High Court or the Magistrates Court, whichever is convenient.

Since the claimant terminated his own employment by resignation, no remedies are available to him.

Consequently the claim is dismissed.

No order as to costs is made.

### Signed by:

Hon. Chief Judge Ruhinda Asaph Ntengye

Hon. Lady Justice Linda Tumusiime Mugisha

#### **PANELISTS**

1. Mr. Ebyau Fidel

2. Ms. Harriet Nganzi Mugambwa

3. Mr. F. X. Mubuuke

io **Date signed:**

**<**