Carolynn Atukunda v Micro Uganda & Anor (Labour Dispute Claim 291 of 2014) [2023] UGIC 40 (10 February 2023)

Full Case Text

# **LABOUR DISPUTE CLAIM No. 291 OF 2014 ARISING FROM HIGH COURT CIVIL SUIT NO. 281 OF 2012 CAROLYNN ATUKUNDA CLAIMANT io VERSUS THE REPUBLIC OF UGANDA IN THE INDUSTRIAL COURT OF UGANDA AT KAMPALA**

**I**

**II i**

- **1. MICRO UGANDA** - **RESPONDENTS 2. EMMANUEL MWANJA**

#### **BEFORE:**

**151. THE HON. AG HEAD JUDGE, LINDA LILLIAN TUMUSIIME MUGISHA PANELISTS**

**1. MR. EBYAU FIDEL**

**2. MS. HARRIET MUGAMBWA NGANZI**

**3. MR. FX MUBUUKE**

**20**

## **AWARD**

### **BRIEF FACTS**

On 1/03/2011, the Claimant was employed by the 1st Respondent its Human Resource and Administration Officer. By letter dated 29/05/2012 the Claimant was **\* 25** hearing , she was issued with a termination letter. Being aggrieved by the actio 'f invited for a Disciplinary Hearing scheduled to take place on the 1/06/ 2012 which she received on the 30/05/ 2012. On1/06/2012, immediately after the disciplinary

the Respondent, she filed a suit in the High Court Vide HCCS No. 281/2012, which transferred to this court in 2014.

**30 35** The Claimant brought this claim for orders and or declarations that; the 2nd Respondent sexually harassed her, that the 1st Respondent is liable for breach of statutory duties, the 1st Respondent is vicariously liable for the 2nd Respondent's actions and omission, that the 1st Respondent was liable for breach of the her constitutional rights, the dismissal was unlawful and or wrongful and the 1st Respondent was in breach of the contract of employment. She also claimed for general, special and punitive damages, interest on all sums at the rate of 30% from the date when the wrongs were occasioned until payment in full, costs and any other

# **REPRESENTATION**

**40** The Claimant was represented by Mr. Jason Njeru Kiggundu ofM/s Ssebowa & Co. Advocates, Kampala and the Respondents by Mr. Frank Tumusiime and Namanya Faith ofM/s Frank Tumusiime & Co. Advocates Kampala.

reliefs that this Court would deem fit and appropriate in the circumstances.

### **ISSUES**

**45 1. Whether the Claimant's dismissal was fair and lawful?**

- **2. Whether the 1st Respondent failed to maintain adequate or suitable measures to enable the Claimant carry out her work without sexual harassment?** - **3. Whether the Claimant was sexually harassed by the 2nd Respondent?**

## **50 4. What remedies are available to the parties?**

## **DECISION OF COURT**

After carefully considering the evidence adduced in chief and in court and carefully examining the submissions of both Counsel, we were ofthe view that issues 1 and 2 should be resolved concurrently as one issue which should be resolved first. We therefore redrafted the issue as follows:

**1. Whether the Claimant was sexually harassed by the 2nd Respondent and the 1st Respondent failed to maintain adequate or suitable measures to address sexual harassment at the workplace?**

**Section 7 of the Employment Act provides;**

**60 "7. Sexual harassment in employment**

- **(l)An employee shall be sexually harassed in that employee's employment if that employee's employer, or a representative of that employer —** - **(a)Directly or indirectly makes a request of that employee for sexual intercourse, sexual contact or any other form of sexual activity tl>a^ contains -**

**3**

**65**

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- **(0** An implied or express promise of preferential treatment in employment; - (ii) An implied or express threat of detrimental treatment in employment; - **70** (iii) An implied or express threat about the present or future employment status of the employee;

(b)Uses language whether written or spoken of a sexual nature;

(d)Shows physical behavior of a sexual nature.

- Which directly or indirectly subjects the employee to behavior that is unwelcome or offensive to that employee and that, either by its nature or through repetition, has a detrimental effect on that employee's employment, job performance, or job satisfaction. - (2)If an employee is sexually harassed in any way described in subsection (1) by the employer or employer's representative, the employee is entitled to lodge a complaint with a labour officer and the labour officer shall have the powers to make all of the orders he or she could have made if the complaint was a complaint about unjustified disciplinary penalty or unjustified dismissal.

**80**

- **85 (3) For purposes ofthis section, an employer's representative is a person who is employed by that employer, who either has authority over the employee alleging sexual harassment or is in a position of authority over other employees in the work place of the employment alleging sexual harassment.** - 90

**(4)Every employer who employs more than twenty-five employees is required to have in place measures to prevent sexual harassment occurring at their work place.**

From the wording of this section, it is clear that although sexual harassment is prohibited, the burden of proving that it occurred heavily lies on the Claimant/Victim and the burden is very high. In our interpretation the Section looks at 2 types ofsexual harassment: quid pro quo pro sexual harassment, where a person in a position of authority such as a supervisor directly or indirectly requests for sexual favours in exchange for work benefitsto the employee/victim and harassment where a superviser demands sexual acts in exchange of the employee/victim not suffering a negative job action. In both cases the Claimant is expected to prove by a preponderance of evidence that he or she was sexually harassed.

The Victim/ Claimant is expected to prove that he or she was being subjected to unwelcome harassment of sexual nature, such as offensive jokes, inappropriate touching, pornographic displays, unwelcome sexual advances or other conduct of sexual nature that is unwelcome, that the harassment is pervasive enough to negatively impact a privileged condition or term of employment, that the employ^,

5 "'"i

knew or should have known that the harassment was occurring but failed to remedy the situation, thus rendering the work environment hostile.

It was the testimony in chiefofthe Claimant in the instant case that, she was sexually

- 110 115 120 harassed by a one Mwanja Emmanuel the Managing Director because he made *'Various lewd sexual advances and gestures towards her... '* and expressed interest in having a sexual relationship with her and although she made efforts to discourage and ignore him, he remained obsessed with her. According to her, one of the incidences occurred at a staff party, where Mwanja followed her everywhere and tried to touch her inappropriately without her consent, resulting in her leaving the party early. The following day, he verbally abused and attacked her for leaving the party early which she interpreted to be an act of sexual rage. She further testified that, whenever she was in his office or at gatherings, Mwanja made sexist comments about her body and his desires, which made her working experience very uncomfortable, caused her to suffer anxiety and made her feel degraded. It was also her testimony that, she reported the matter to her line superviser in Nairobi, a one Kithoka Mary, who advised her to remain strong in the hope that Mwanja would give up, but he did not do so. She claimed that she did nothing more about her complaint. It was her contention that, Mwanja's actions amounted to sexual - 125 harassment which the HR failed to address.

The Respondent's evidence through RW1 and 2nd Respondent, Mwanja, was that; the Respondent had a Sexual Harassment Policy although it was not displayed on the wall. He admitted that, there was a Christmas party on 9/12/2011 form which the Claimant left earlier, leaving visitors from the group whom she was supposed to take care of unattended. It was his testimony that, he was not aware that, the Claimant had reported him for sexually harassing her and he did not remember how many

times she accessed his office or her dress code nor could he recall when he ever worked with her beyond 5.00pm. He denied ever being hostile to the claimant.

135 140 Unfortunately, although what the Claimant's testimony entailed all the elements of sexual harassment, she fell short of adducing evidence to prove the allegations of sexual harassment. This was further compounded by her failure to adduce any evidence to prove that she actually reported the acts ofsexual harassment to the HR and she too no steps to address her complaint, as a basis upon which the Court could fault the respondent for not complying with Section 7(6), of the Employment Act 2006 and the Employment (Sexual Harassment) Regulations, 2012, which requires that employers take preventive measures against sexual harassment at the work place and to punish it when it occurs. The Employment (sexual harassment) Regulations are instructive on the issue as follows:

#### **Regulation 3 stipulates that;**

L30

145 *(l)An employer with more than twentyfive employees shall adopt a written policy against sexual harassment which shall include the following*— *(a)a notice to employees that sexual harassment at the workplace is unlawful;*

*employee for filing a investigation of a (b)a statement that it is unlawful to retaliate against an complaint of sexual harassment or for co-operating in an sexual harassment complaint;*

*(c) a description and examples ofsexual harassment;*

*(d) a statement ofthe consequencesfor employers who arefound to have committed sexual harassment;*

155 *(e) a description of the process for filing sexual harassment complaints and the addresses and telephone numbers oftheperson to whom complaints should be made; (f) education and training programmes a regular basis; and on sexual harassmentfor all employees on*

*(g) additional training for the committee on sexual harassment, supervisory and managerial employees.*

160 *(2) Where the union is represented at the workplace the employer shall consult the union before initiating the sexual harassmentpolicy.*

### **Regulation 4 also stipulates that;**

*copy of the (l)An employer shall provide each employee with a sexual harassment policy.*

165 *(2)An employer shall provide to each new employee a copy of the sexual harassment policy upon commencement of employment and inform the employee ofhis or her right to report cases ofsexual harassment.*

*(3)The policy shall be expressed in a manner and language, which the employees may reasonably be expected to understand.*

## 170 Regulation 5 is to the effect that:

*An employer shall specifically prohibit the dissemination ofsexual explicit voice mail, e-mail, graphics, downloaded material or websites in the workplace and shall include these prohibitions in the workplace policy.*

# Regulation 6 provides that:

175 *(l)An employershallpost the sexual harassmentpolicy in a conspicuous area at the workplace.*

*(2)An employer shall post the names, positions and telephone contacts of the members of the sexual harassment committee in a conspicuous area at the workplace.*

# 180 Regulation 8 goes on further to provide that:

*(J)An employer with more than twenty-five employees shall designate a person who is gender sensitive to be in charge ofsexual harassment complaints.*

*(2)In this regulation, a person shall be taken to be gender sensitive ifhe or she is conscious ofthe needs ofeach gender.*

185 Regulation 10 in particular stipulates that:

*(l)An employer shall establish a sexual harassment committee composed of representatives of management and employees or Labour union representatives selected annually by each party.*

190 *(2)The committee shall comprise four members, including the Chairperson designated by the employer.*

*(3)Members of the committee shall be persons knowledgeable in and sensitive to gender and sexual harassment issues.*

*(4)A member ofthe committee may receive a written or verbal complaint and where a verbal complaint is made the committee member receiving it, shall reduce it into*

**i!**

195 *writing and read to the complaint who shall sign it and the member of the committee shall countersign it.*

200 We established that although Clause 4.27 of the 1st Respondent's MUL Human Resource Manual fulfills some ofthe requirements ofthe The Employment (sexual harassment ) Regulations 2012, as stipulated above, it did not provide for the establishment of an enforcement mechanism or Committee as provided under Regulation 10 (Supra), therefore there was no mechanism for enforcing its Sexual harassment policy, which was a requirement. In addition, it was the 2nd Respondent's testimony that the Sexual harassment Policy was not conspicuously displayed nor was it issued to staff, which was a violation ofthe sexual harassment Regulations(supra). This notwithstanding however, as already discussed, the standard of proving sexual harassment is very high, and in the instant case, the Claimant having not adduced any evidence to demonstrate how she was subjected to unwelcome harassment of sexual nature, or that she reported the matter and it was not addressed by the Respondent failed, we unfortunately had no basis to hold that the 2nd Respondent Emmanuel Mwanja sexually harassed her. In the same vain in the absence of evidence that she reported the matter to Mary Kithoka, the Human Resource Manager in Nairobi and she did nothing about it, we had no basis to fault the Respondent for failing to hold Mwanja culpable. The only evidence on the record was that the Respondent was not taking preventive measures by among others conspicuously displaying the Sexual harassment policy and the policy as provided under the Human Resources Manual lacked the required enforcement mechanism, therefore the Respondent is ordered to ensure that the Respondent complies with the Employment (Sexual Elarassment) Regulations, 2012, with immediate effect.

In the circumstances, the claim that, the Claimant was sexually harassed having not been substantiated fails.

# **2. Whether the Claimant's termination was procedurally and substantively unlawful?**

<~>225

It is the position ofthe law that, an employer can no longer terminate or dismiss an employee for no reason at all and without according him or her an opportunity to respond to the reasons for which he or she is being considered for termination or dismissal.(see **Hilda Musinguzi Vs Stanbic Bank SCCA No.005 of 2016).** It is also trite that, such an employee must be given reasonable time within which to prepare to respond to the reasons orally or in writing, before an impartial disciplinary-

Committee or Tribunal and to be accompanied by a person of his or her choice.

230 **(Section 66 of the Employment Act).** Section 68 the same Act, is to the effect that the Employer must prove the reason or reasons for dismissal and where he or she fails to do so, the dismissal shall be deemed to be unfair within the meaning of section 71.

235 240 245 The evidence on the record indicated that the Claimant did not deny that, she was subjected to a disciplinary hearing on 1/06/2012 on grounds that she has poor attitude and for poor performance. In fact, at the disciplinary hearing, Mr. Mwanja who was the Complainant, accused her of insubordination which was in essence misconduct. Although he made a number of allegations about her poor performance and in particular about the high error rates in the letters she wrote and reports she made and about the several occasions where she had clashed with staff. He fell short ofsubstantiating the allegations with evidence, showing the said errors and that the errors had been put to her attention and she had failed and or refused to improve. There was also no evidence of any investigation reports or any other evidence that established that her performance had been reviewed or appraised to substantiate the allegation that she was a poor performer.

In our considered opinion, it was notsufficient to merely state that she was appraised and found wanting in some areas, without any other evidence to show that following this appraisal, there was a subsequent appraisal to indicate that she failed to improve or that any there were any steps taken to bring her subsequent failure to her attention and or that she was subjected to disciplinary action for her failure to improve or for

pooi performance, before the poor performance could be used as a basis for her termination as was the case.

255 It is a settled position ofthe law that, an employer must demonstrate with credible evidence that, an employee committed an act of misconduct or poor performance leveled against him or her before the employee is terminated or dismissed and where the termination or dismissal was due to allegations of poor performance, this court's holding in **Tamale Musisi Rita vs Airtel Uga nda Limited LDC No. 183 of 2017,** is to the effect that, the employer must demonstrate that the employee in issue is appraised and notified about his or her failure to perform after which, he or she is given an opportunity to improve by either being placed on a PIP or any other means the employer deems appropriate and finally the employee is subjected to disciplinary proceedings, before the termination or dismissal can be effected. A termination founded on mere allegations cannot therefore not stand and is contrary to the law as provided under Sections 66 and 68 ofthe Employment Act(supra).

265 We further established that, although the claimant was subjected to disciplinary proceedings, the disciplinary committee in her case, comprised ofmembers ofstaff who were also witnesses against her at hearing. This is evidence by the report ofthe Committee's deliberations at page 24 ofthe Respondent's trial bundle. Each ofthe members ofthe committee categorically made accusations about her conduct rather than objectively analyse the complaint placed before them by the complainant Emmanuel Mwanja, moreover after she was sent out, therefore she did not have any opportunity to defend herself and in any case it was conduct devoid of ) 270

impartiality as envisaged under section 66 and Article 28 of the Constitution of Uganda as (amended).

275 280 A scrutiny of the Respondent's Human Resources Manual at pages 48, listed offences, the procedure to follow in terminating an employee, starting with a verbal warning, written warning, final written warning and then the penalty but there was nothing on the record to indicate that, the Respondent followed its manual when handling the Claimant's case. A reading ofthe emails relating to the Claimant's case and in particular the emails marked "F" at pages 86-96 ofthe Claimants trial bundle, left no doubt in our mind that, the Respondent had a premeditated mind to dismiss the Claimant and the disciplinary hearing was a mere formality to rubber stamp the dismissal. A case in point is the email dated 24lh May 2012 at 10:02am, from Mary Kithoka to Emmanuel Mwanja reads in part as follows;

**i**

285 *"We've discussed the issue ofcarol and we are all agreeable it's time to let go. It is necessary to release her soonest possible...*

*Anyway, please summon her to the offices on Monday and give her this termination letter. Let Adrian do her exit interview andpay her off*

*In the meantime, an immediate replacement is necessary. We need to advertise this position in the local dailies, unless ifyou have a different opinion.*

*With best Regards*

# *Mary Kithoka.*

295 It is trite that no one should be condemned without being heard and in the case of employment disputes an employee must never be condemned without being given a fair hearing and without following a fair procedure in accordance with the Law. This principle has been emphasised by Supreme Court in **Hilda Musinguzi** Vs **Stanbic Bank (U) Ltd** SCCA 005/2016 where the lead judgement of Hon. Justice Eldad Mwangusya at page 12 states that:

300 "... *the right ofan employer to terminate a contract cannot befettered by the Court so long as the procedure for termination is followed to ensure that no employee's contract is terminated at whims ofan employer and ifit were to happen the employee would be entitled to compensation... "*

In the light ofthe foregoing, we are not satisfied that, the Respondent complied with its own disciplinary procedure and the procedure for termination as provided under sections 66 and 68 of the Employment Act(supra) and The **Termination of Employment Convention (ILO) No. 158 of 1982** on which the Employment Act 2006 is based and Article 4 in particular which provides that:

*"The employment ofa worker shall not be terminated unless there is a valid reason forsuch termination connected with the capacity or conduct ofthe worker or based on the operational requirements ofthe undertaking, establishment or service... "*

It is therefore our finding that, the Claimant's termination was substantively ai procedurally unlawful. This issue is resolved in the affirmative.

15

#### **Issue 3. What remedies are available to the parties?**

315 Having established that the Claimant was unlawfully terminated, she is entitled to some remedies. She prayed for the following:

#### **1. Unpaid Salary Arrears**

320 325 It was the 2nd Respondent's testimony that the Claimant was not paid because she did not comply with the exit requirements. He however he did not particularize the requirements the Claimant had not fulfilled to warrant her not being paid. In the absence of the particulars of the requirements she did not comply with, we found no basis to deny her the the prayer for the payment of her entitlements as stipulated in the letter of termination marked "I" at page 100 of the Claimant's trial bundle, which includes, he payment ofthe salary the Month of May 2012. The Claimant is therefore awarded her unpaid Salary for the Month on May 2012, amounting to Ugx. **1,400,000/=**

# **2. Payment of Severance Allowance**

330 Citing section 87(a) ofthe Employment Act provides for the payment ofseverance allowance to an employee who has been in the employ of an employer for six a period of6 months or more and is unlawfully temiinated among other circumstances. Counsel for the Claimant prayed that since there was no agreed formula, the Claimant is paid Ugx. 2,100,000/- in accordance with **Donna Kamuli vs DFCU LDC 002/2015,** which provides for the payment of 1 months' salary for every year

335 served, in cases where there is no agreed formula for the calculation of severance pay. I

We have no reason not to award the Claimant severance pay, having already established that she was unlawfully terminated. She served for 1 year and 3 months earning gross salary ofUgx. 1,400,000/-. She is therefore entitled to 1 months' salary as severance pay amounting to Ugx. **1,400,000/=.**

### 340 **3. Payment in lieu of Notice**

It was submitted for the claimant that she was entitled to 1 months' notice in accordance with section 58(3) of the Employment Act having worked for the Respondent lyear and 3 months. Counsel argued that the Claimant was not given notice oftermination. We established that the Respondent subjected the Claimant to a hearing on 1/6/2012 and issued her with the termination letter on the same date, moreover without following the correct procedure for termination of an employee as provided under its Human resources Manual and the relevant Employment law(supra). In any case it is one of the entitlements which were stipulated in the termination letter and which as already discussed were not paid to her. Having worked for the respondent for 1 year and 3 months, she is entitled 1 months notice or 1 month's salary in lieu ofnotice as provided under section 58(3) (b). Accordingly she is awarded 1 months' salary as payment in lieu of notice of Ugx. **1,400,000/-.**

**4. Unpaid Leave days**

**I**

It is settled that although an employee is entitled to take leave days, he or she cannot take it at his or her whims, but rather it must be taken on a mutually agreed with his or her employer. The employee is therefore expected to apply for and be granted his or her leave days. It is therefore, a settled matter that, for any claim for untaken leave to succeed, the employee/claimant must demonstrate that, he or she applied for and was denied leave.(see Section 54 ofthe Employment Act, 2006).

360 The 1st Respondent in the instant case, does not dispute that, the claimant was entitled to leave earned and not taken as stipulated under her letter of termination. We therefore have no reason to deny her claim for untaken leave. The 1st Respondent is therefore, ordered to pay the Claimant her leave earned and not taken as stated in her letter oftermination.

#### 365 **General damages**

Damages. Citing **Kasingye Tuhirirwe Genevieve Vs Housing Finance Bank Limited LDR No 115 of 2015,** Counsel for the Claimant submitted that, damages are a direct probable consequence ofthe act complained of and they are intended to restore the wronged party into the position he or she would have been as if there had been no breach of contract. Indeed, general damages are intended to place the injured party in monetary terms as near as possible in monetary terms, to the same position her or she was in had he or she not suffered injury by the Respondent. The Counsel prayed that the Claimant in the instant case is awarded **Ugx.l50,000,000/=** as general 375 Chief Justice Katureebe( as he then was) in **Stanbic Bank Vs Kiyimba Mutale** SCCA No. **2/2010,** on the award of General Damages stated that:

*'... Having found that the appellant was wrongfully terminated, the Court should have proceeded to make an award of general damages which are always in the discretion ofthe court to determine.*

*In my view, that adequate compensation would have been a payment in lieu ofnotice, a measure ofgeneral damagesfor wrongful dismissal (emphasis ours) andpayment ofaccruedpension rights. The High Court could have awarded substantial general damages but in its discretion, it chose to award only shs. 2,000,000/. ... Ithink that*

385 *the respondent could have been awarded substantial general damagesfor wrongful termination of his employment, taking into account his status, the manner of termination " (Emphasis ours).*

In light ofthis **Kiyimba Mutale(supra),** this court has held in many cases that, the remedy for an employee who is unlawfully terminated is an award of general Damages in addition to other entitlements pleaded in accordance with his or her contract of employment or the Employment Act 2006.

We have already established that the Claimant was unfairly terminated, she is entitled to an award of general damages. It is the position ofthe law that the quantum of damages to be awarded is determined at the discretion ofCourt and depending on the merits of each

case. We believe that the Claimant having worked for the Respondent for 1 year and 3 months, Earning Ugx. 1,400,000/=, an award ofUgx **18,000,000/=** is sufficient as general damages.

# **5. Punitive damages**

400 We found no evidence to warrant the grant of punitive damages. They are denied.

### **6. Aggravated damages**

There were no aggravating circumstances to warrant this award. They are denied.

### 7. **Interest.**

405 Given the inflationary nature of the currency today and given the fact that the Respondent may take time to pay the Claimant, all the pecuniary awards made above shall all attract interest at the rate of 15% per annum from date offiling this claim in the Industrial Court, until payment in full.

In conclusion the claim succeeds in the above terms with no order as to costs.

Delivered and signed by:

410 **THE HON. AG HEAD JUDGE, LINDA LILLIAN TUMUSHME M HA**

#### **PANELISTS**

- **1. MR. EBYAU FIDEL** - **2. MS. HARRIET MUGAMBWA NGANZI** - 415 **3. MR. FX MUBUUKE**

**DATE: 10/02/2023**