Jag Security Limited v Aminu (Labour Dispute Miscellaneous Application 2 of 2022) [2023] UGIC 35 (13 May 2023)

Full Case Text

## **THE REPUBLIC OF UGANDA**

#### **IN THE INDUSTRIAL COURT OF UGANDA AT JINJA**

**LABOUR DISPUTE MISC. APPL. NO.02 OF 2022**

**ARISING FROM MIASC. AAPLN. NO 01/2022, ARISING FROM LDC. 5 NO.166 OF 2022 MBALE LABOUR OFFICE.**

**JAG SECURITY LTD APPLICANT**

**VERSUS**

**AMINU JULIUS CEASER RESPONDENT**

**BEFORE:**

**io THE HON. JUDGE, LINDA LILLIAN TUMUSIIME MUGISHA PANELISTS**

**1. MS. HARRIET MUGAMBWA NGANZI**

**2. MR. FX MUBUUKE**

**3. MR. FIDEL EBYAU**

**15 REPRESENTATION**

## **RULING**

This ruling is in respect of an application brought by notice of motion, under Section 98 and the Civil Procedure Act Cap 71, Section 33 ofthe Judicature Act, **20** Cap 13 0.52 rule ofthe Civil Procedure Rules S. I 71, for orders that:

1. The Decision of Wabomba Sidrah, the Labour officer of Mbale District Labour Office, dated 7/12/2021 dated 7/12/2021, is a nullity which should be set aside.

- 2. Cost ofthe application be provided for. - **25** 3. The application is supported by an Affidavit of Akampurira Ronah,, dated 12/04/2022.

### **Background:**

The Respondent was employed by JAG Security Group in Kampala, from 2012. He was deployed in the Applicant's different offices and he rose through the ranks

- **30** and in 2017 he was appointed to the position ofRegional Manager until 2019. He was earning a salary ofUgx. 600,000/=. In 2020, he was transferred to Kampala where he was in charge of deploying guards. He requested annual leave in November 2020, which was granted to him but on his return, he developed misunderstandings with Management which according to him forced him to - **35** resign from employment. He was promised his salary for December 2020, but the Applicant failed to pay, hence his complaint to the Labour officer. The Complaint was decided in his favour and in the same vain, the Labour officer referred the matter to the Industrial Court to resolve the issue ofunfair dismissal, un remitted NSSF and untaken leave. - **40** According to the Respondent, the Labour Officer served the Applicant with a notification about his Complaint by email on 19/10/2021 and 5/11/202, but she refused to attend the hearing, leading to the Labour Officer to proceed with the matter in their absence.

#### **REPRESENTATION**

**45** Mr. Ogoi Allan of Okalang Law Chambers was for the Applicant and Mr. Namugali Julius of M/S T Odeke&Co. Advocates was for the Respondent.

### **The Applicant's case:**

The summary of the Applicant's case as stated in the Affidavit deponed by Akampurira Ronah, the Accounts officer ofthe Applicant is as follows:

*)*

**50** 1. That at the time of his resignation from the Company, the Respondent was the Applicant's employee working at it's Kampala office.

> 2. That the Applicant was shocked to receive an award emanating from Labour Complaint No. 166/2021, which complaint was never brought to their attention.

**55** 3. That according to her lawyers Okalang Law Chambers, upon perusal ofthe file they established that, on 19/10/2021 and 5/11/2021, (as evidenced in annexture "D" on the Affidavit in support), the Mabie District Labour officer allegedly issued a notification to the Applicant, which was never received.

4. That the Labour Officer deponed a false affidavit of service in which she alleged that, she effected service on to the Applicant, whereas not and in any case she was not a High Court process server, therefore she could not depone a return ofservice.

5. That on 07/12/2021, the Labour Officer proceeded to handle the matter and deliver an award against the Applicant moreover in her absence.

6. That Applicant's lawyers informed herthat, given that the Complainant was employed and worked in the Applicant's Kampala Office, and he exited office while based in Kampala, the Mbale District Labour officer had no jurisdiction to entertain a complaint from Kampala District.

7. That despite her lack ofjurisdiction the labour officer made an award and at the same time made a reference ofthe same dispute to the Industrial Court stating that, she was unable to determine and dispose ofthe issues regarding unfair termination, failure to remit NSSF and the denial of annual leave, which amounted to a miscarriage ofjustice. This was evidenced by annexture "G" attached to the Affidavit in support. That despite the pending reference at the Industrial Court, the Labour Officer extracted a decree, for execution, which is a nullity that ought to be set aside.

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**65**

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8. That the Respondent has erroneously applied to the Industrial Court for execution despite the reference pending before the court for determination.

80 9. That this Court is dressed in inherentJurisdiction to address the gross injustice, irregularities and illegalities occasioned to the Applicant arising from the proceedings before the Mbale Labour Officer.

# **The** Respondent's Case

The Respondent's case as stated in an Affidavit in opposition deponed by Aminu Julius Ceaser the Respondent, is as follows:

- 85 1. That based on the advice of his lawyers, that the applicant cannot feign ignorance ofthe proceedings before the labour officer Mbale because the same was dully served on them as evidenced in annextures, A, B and C on the Affidavit in support, respectively. - Applicant, but they ignored them leading to an exparte award. That the Labour officer informed him that, the Applicant's lawyers had intentions of meeting with him to settle the matter, and indeed his lawyers were contacted by the Applicant's lawyers, but they advised them to file their reply to the application instead. 2. That Labour Officer at Mabie Miss Wabomba Sidra effected service on the - 3. That he served the Applicant for a long time, and he was deployed in various places, but his hard work was never appreciated. Instead, he was dismissed unlawfully without being given an opportunity to be heard or to be paid his outstanding payments. - According to him, this did not cause a miscarriage ofJustice. 4. That the Labour officer had jurisdiction to handle the matter and issue the award which she did in accordance with the law and the reference she made for the Industrial court to be handled in the Industrial court.

5. That this court has no powers to set aside an award but rather to handle appeals from the decisions ofthe labour Officer, therefore this application is bad in law and it should be dismissed with costs.

# **DECISION OF COURT**

We have carefully considered the application, the affidavits in support and in opposition of the Application and submissions of the Applicant(the Respondent did not file any submissions) and framed the following issues fro resolution:

**1. Whether the Labour officer Mabie had Jurisdiction to handle a dispute arising from Kampala District.**

**2. Whether the Labour Officer was correct to refer the matter to the Industrial Court for Resolution, after she had handled and rendered a decision on it?**

**RESOLUTION OF ISSUES**

1.**Whether the Labour officer Mabie had Jurisdiction to handle a dispute arising from Kampala District.**

We entirely associate ourselves with the holding ofMubiru, J, in **Dudu Fataki vs Mwalimu Juma Sulieman Oba HCCR No. 003 of 2015,** that it is the principle ofthe law that " *...jurisdiction is a creature ofstatute. One cannot exercise a jurisdiction that is not conferred upon it by law. Therefore, whatever one purposes to do withoutjurisdiction is a nullity ab nitio... "*

Whereas a Labour officer's Jurisdiction to handle Labour disputes is provided for under sections 11,12, 13, 14 and 15 of the Employment Act, and Section 93 of the Employment Act, provides jurisdiction in respect of matters involving an infringement of any ofthe rights granted under the Employment Act. The Labour Officer's geographical jurisdiction is provided for under

Section 9 ofthe same Act. Section 9(4) and (5) ofthe Employment Act which provide as follows:

- *(1) Subject to any written law relating to the appointment ofa person to the public service, there shall be appointed a Commissioner who shall be responsible for the implementation of the provision of this Act, acting under the directions ofthe Minister.* - *(2)Notice of appointment of a Commissioner shall be published in the Gazzette.* - *(3) The commissionershall havepowers ofa labour officer including those set out in sections 11,12,14 and 15,* - *(4) Every district service Commission shall appoint a district Labour Officer and such other officers as may be necessaryforpurposes ofadministering this Act.* - *(5) For avoidance of doubt, every district shall have at least one district Labour Officer.*

145 150 The import ofthis section as we understand it, is that it creates Labour Districts to be presided over by at least 1 Labour Officer who is appointed by a respective District Service Commission, for purposes ofimplementing the provisions ofthe Employment Act, 2006. However, the law does not provide for concurrency of jurisdiction, where a litigant can choose a Labour District or Labour Office in which to file a complaint, nor does it provide for shared or overlapping jurisdiction in which Labour Districts or Labour officers can share geographical jurisdiction.

Therefore, once a person is appointed as a District Labour Officer by a particular District Service Commission he or she can only preside over Labour matters/ cases arising from within the District in which he or she was appointed. He or she would therefore have no jurisdiction to handle matters arising outside the District **f\*** or from any other District, given the wording under Section 9 (4) and (5) ofthe

Employment Act, 2006(ibid). In addition, although the Law does not provide for exceptions under which a litigant or Labour Officer can disregard the geographical jurisdiction of a Labour District, we are of the strong belief that the intention of the legislature was NOT to create concurrent or overlapping jurisdictions of Labour Districts, otherwise it would have explicitly provided so, under section 9 ofthe Employment Act.

The Labour dispute in the instant case, arose from Kampala, where the Respondent was initially employed in 2013. In 2020, he was deployed as Regional Manager in charge ofdeploying guards. It is not in dispute that after his initial recruitment at Kampala in 2012, he was deployed in Soroti and in December 2013, he was transferred to Mbale. He was however transferred back to Kampala in July 2020, from where he resigned from his Job, in December 2020.

170 175 180 The Labour Officer in her decision regarding his complaint, did not give the basis upon which she handled the matter which clearly arose from Kampala, where the Respondent was serving at the time ofterminated his employment by resignation. It is not in dispute therefore that whereas he was recruited in Kampala, where the Applicant is head quartered and he was only deployed in Mabie which was only a regional office, he had returned to Kampala and was working in Kamapala at the time of his termination. In the circumstances there is no reason why he did not file his complaint in Kampala. As discussed already, there was no reason extended why the matter was filed in Mbale as opposed to Kampala, where the cause of action arose and most importantly, given that the law does not provide for concurrent or overlapping geographical jurisdiction of Labour Districts or Labour Officers.

Considering Section 9(4) and (5), as discussed before, a litigant cannot choose to file a complaint before any Labour Officer in any District, nor can a Labour Officer choose to entertain any Labour compliant that arose from outside his or

185 her geographical Jurisdiction. In our considered view where a matter is filed before a Labour officer who has no geographical jurisdiction to handle it, this Labour Officer is expected to refer it to the Commissioner Labour, who has jurisdiction to refer it to a Labour officer with proper Jurisdiction, to handle it.

190 We are satisfied that the Applicant has demonstrated that the cause of action having arisen from the Kampala Office, the Labour Officer Mbale lacked Jurisdiction to handle this matter, therefore, the award she issued is a nullity ab nitio.

## **2. Whether the Labour Officer was correct to refer the matter to the Industrial Court for Resolution, after she had handled and rendered a decision on it?**

It was the submission of Counsel for the Applicant, that the Respondent having admitted that, he resigned from hisjob, which the Labour Officer acknowledged, in her award, she should not have proceeded to declare that, he was unlawfully terminated. He further contended that, having made the irregular award, she should not have made a reference to the Industrial court to resolve the same issues which she had resolved in her award.

205 210 The provision of Section 5 ofthe Labour Disputes (Arbitration and Settlement) Act 2006 provides for the procedure and circumstances under which a Labour officer can make a reference to this Court. The provision is to the effect that, where the Labour Officer has not resolved a dispute with 4 weeks by either conciliation (4 (c) or by the parties negotiating, at the request of any party, such a dispute may be referred to the Industrial Court. Subsection 3 ofsection 5 further provides that where a Labour Officer has not resolved a matter and has not referred it to the Industrial Court within 8 weeks after a request is made for reference, the parties may referthe matter to the Court in their individual capacity. Therefore, a labour officer can only refer a dispute to the Industrial Court ifhe or she has not resolved it by conciliation or negotiation of the parties or by adjudication or arbitration as provided under section 13 ofthe Employment Act, within the time stipulated under section 5 ofthe LADASA.

215 220 225 230 The impugned award on the record clearly indicates that the Labour Officer did not only resolve the issue **whether there was a justifiable ground for the Claimant/Respondent's dismissal from work in the negative,** but she also awarded the Respondent/Claimant remedies in form of salary arrears for the month of December 2020, Repatriation fee of 300,000/=-, pay in lieu of notice amounting to 600,000/-, failure to give a hearing -600,000/-, untaken leave arrears 5,400,000/- , un remitted NSSF 9,700,000/-, Allowance for December 2020,- 180,000/-,personal expectations-10,000,000/-,available employment opportunities-15,000,000/-, Severance pay 9x 600,000/-, all totaling to Ugx. 47,800,000/- to be paid within 14 days from the7/l 2/2021, the date ofthe award and ordered for the issuance of a certificate of service to the Respondent. We found it peculiar that, in the same vein, on 10/01/2022, the Labour Officer extracted a decree for execution and also made a reference ofquestions regarding the unfair termination at work, failure to remit NSSF and denial of annual leave to the Industrial Court, for resolution yet she had already resolved them in her award.

On the other hand, Section 93(7) of the Employment Act provides that, where the Labour Officer has not resolved a dispute by either deciding it or dismissing it within 90 days ofthe submission of a complaint, the complainant may pursue the claim before the Industrial Court. It is therefore a settled principle ofthe law that a reference to the Industrial Court is only made in respect of matters which the labour officer has not resolved within the time prescribed by law.

Where a matter has been resolved by the Labour officer and a party is dissatisfied with the decision, he or she has the option to file an appeal before the Industrial Court in accordance with Regulation 24 of the **Labour Disputes (Arbitration**

240 **and Settlement ) Industrial Court Procedure Rules) rules , 2012,** and not by way ofreference by a Labour officer as was done in the instant case.

It was, therefore, irregular for the Labour officer in the instant case, to refer a matter to which she decided and rendered an award instead of advising the dissatisfied litigants to Appeal the decision at the Industrial Court.

245 In any case the matter was erroneously heard by the Labour Officer therefore the reference made had no basis.

It is therefore our finding that, in principle once where a labour officer renders a decision in a complaint before him or her, he or she cannot refer the same matter to the Industrial court as reference.

- 250 In the circumstances having found that the decision she rendered in the instant case was an illegality, because she lacked jurisdiction to handle, it was incorrect for her to make the reference to, this court for resolution.**(see Makula International Ltd Vs His Emminence CardinalNsubuga & Anor CA No. 4 of 1981).** - 255 In the final analysis, the Application succeeds in the following terms: - 1. The entire proceedings before the Mbale Labour office were a nullity because: - (a) The Labour officer of Mbale, lacked jurisdiction to handle Labour Complaint No.166 of 2021, which arose from Kampala, therefore her decision is therefore set aside. - (b) The Labour Officer's reference to the Industrial Court, ofquestions and issues she had already resolved moreover in an illegal award, was a contravention with Section 5 of the Labour Dispute (Arbitration and Settlement) Act 2006 and section 93 ofthe Employment Act, therefore it is illegal and cannot be entertained by this court. - 2. The illegal award is therefore set aside in its entirety.

3. No order as to costs is made.

signed by:

**THE HON. AG. HEAD JUDGE, LINDA LILLIAN TU** 270 **MUGISHA**

## **PANELISTS**

**1. MS. HARRIET MUGAMBWA NGANZI**

**2. MR. FX MUBUUKE**

**3. MR. FIDEL EBYAU**

275 Delivered in open Court in the presence of:

Court clerk: Mr. Christopher Lwebuga

DATE: 13/05/2023