James Tweheyo v Uganda Nataional Teachers Union (Labour Dispute Claim 337 of 2017) [2022] UGIC 69 (6 May 2022)

Full Case Text

# **THE REPUBLIC OF UGANDA IN THE INDUSTRIAL COURT OF UGANDA AT KAMPALA LABOUR DISPUTE CLAIM NO. 337 OF 2017 [ARISING FROM KCCA/CEN/LC/224/2017]**

### **BETWEEN**

**JAMES TWEHEYO CLAIMANT**

## **10 VERSUS**

**UGANDA NATIONAL TEACHERS UNION RESPONDENT**

### **BEFORE**

**15 1.** Hon. Head Judge Ruhinda Asaph Ntengye

# **PANELISTS**

- 1. Mr. Bwire John Abraham - 2. Ms. Julian Nyachwo - 3. Mr. Katende Patrick

**5**

# **AWARD**

## **Background**

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**25**

By contract dated 15/10/2012 the Respondent employed the claimant as Secretary General. Under clause 3 of the contract, it was for 5 years effective 16/10/2017 and renewable twice subject to satisfactory performance. A standing committee meeting held on 07/10/2017 decided that the contract of the claimant would not be renewed. The claimant on 8/10/2017 wrote to the National chairman appealing against the standing committee's decision.

**30**

In reply by letter dated 13/10/2017, the chairman declined to entertain the appeal and instead asked the claimant to handover office to the standing committee meeting to be held on 16/10/2017. On this date the Chairman wrote to the claimant reminding him that the contract ended this very day and instructed him to hand over to the standing committee. On 9/10/2017, the claimant had prepared

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facilitation for the Chairman and others for official travel to Kigali to attend a

**35 40** conference due on 13th - 16th October 2017. In a letter dated 10th October 2017, the General Secretary convened a consultative meeting by the Trustees for 12/10/2017 over the resolution of the standing committee that decided not to renew the claimant's contract and the trustees issued an advisory to the chairperson to the effect that the National Executive Council should sit before the dates scheduled for handover of office by the claimant *"to discuss the recommendation and take a final decision on the matter as the overall Governing organ of the Union"*

**45** On the same date of 12/10/2017, the Chairman wrote to the claimant condemning his action of calling the trustees for a consultative meeting and declaring the trustees resolutions null and void and insisting that the claimant must hand over office on 16/10/2017. On 14/10/2017 under the chairmanship of the National vice chairperson, a National Consultative Council meeting sat and under minute 5 resolved to nullify the decision of the standing committee and instead renewed the contract for another five years under the same terms and conditions of service.

### **50 Issues agreed**

- a) Whether the claimant's renewed contract was valid. - b) Whether the claimant was unlawfully terminated. - c) What remedies are available to the parties?

## Representations

**55** The claimant was represented by Mr. Rwambuka Nuwandinda Jonan of Rwambuka & Co. Advocates while the respondent was represented by Mr. Jude Byamukama of J. Byamukama & Co. Advocates.

## **Evidence adduced**

**60** The Claimant adduced evidence from himself and two other witnesses while the respondent adduced evidence from 6 witnesses. The evidence of the claimant was that as Chief Executive Officer he reported to the NEC (National Executive Council) which was mandated to review his performance. He considered the non-renewal of his contract by a standing committee unfair and according to him the chairperson wanted to usurp the power of NEC by refusing to have his issues in **65 70** connection with renewal of his contract handled by NEC. In the absence of the Chairperson who was out of the country, and in consultation with the vice National Chairperson, a special NEC meeting was called on 14/10/2017 which decided to renew his contract. According to the Claimant, on return from Kigali, the Chairperson took it personal and asked him to hand over office but he already had a contract running for 5 years. He was forced to hand over office on 23/10/2017. He asserted that the NEC meeting that renewed his contract was properly constituted.

*Q*

**85**

**90**

One Nabuyondo Mary Josephine testified on behalf of the claimant that she legally presided over a properly constituted NEC meeting as vice chairperson in the absence of the chairperson on 14/10/2017 and the meeting decided to renew the contract of the claimant. According to her, the chairperson on return from Kigali, took it personal and vowed to evict the claimant from office. The witness went on to say that indeed the claimant was later on forced out when he had a running contract.

**80** The last witness for the claimant testified as having been one of the NEC members who attended the meeting that renewed the contract of the claimant.

The evidence of one ZadockTumuhimbise, chairperson of the respondent, was that the claimant was aware of the non- renewal of his contract by the respondent but he refused to hand over office and purported to have received a renewal of his contract on 14/10/2017 which according to him was illegal and irregular, the meeting having been chaired by the vice chairperson, who was not delegated.

According to him, the meeting was in contravention of **Section 10 (b) (iii) of the Constitution.** He asserted that the meeting was illegal because he was in the country and sent SMS to all NEC members to the effect that the planned meeting was illegal. He asserted that the delay to pay the claimant his gratuity was caused by an Audit report that had revealed financial impropriety by the claimant.

One Okiror Mary Jacinta Ikima on behalf of the respondent testified that, although she was a NEC member and was invited for a NEC meeting she arrived very late at 8:30pm and found the meeting already ended but she signed on the document only to get transport refund and not that she voted in favor of a motion to renew the claimant's contract.

**95**

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Another witness for the respondent, one Lochan Martin testified that he reached the venue of the meeting on 15/10/2017 and that therefore he did not attend the NEC meeting that purportedly renewed the claimant's contract on 14/10/2017 but he signed the attendance in order to get his transport refund.

Matovu Collins another respondent witness testified that he was on $13/10/17$ asked by the claimant to pick the chairman from Kabale and drive him to Kigali, at specifically at Katuna, the Chairperson on receiving a certain call, cancelled the trip and both returned to Kabale, at Manhattan Hotel. He proceeded to Kigali with one Grace Okwaringa (without the chairperson)

One other witness for the respondent, Adia Grace testified that she received an SMS message on 14/10/2014 at 10 am inviting her for a meeting but she did not attend because it was at short notice.

Ssali John was another of the respondent's witnesses who testified that he did not attend the meeting because it was at short notice. 110

# **SUBMISSIONS**

Counsel for the claimant referring to exhibits C2 and C1, Human Resource Manual and the **Constitution of the respondent** submitted that the National Executive Council was the appointing authority as well as the termination authority. He argued that the evidence of the Chairman in cross examination that the standing 115 committee was vested with this power was false since no provision in the Constitution provided such power to the standing committee. According to counsel there was no resolution by NEC delegating the power of appointing employees to the standing committee.

- Counsel submitted that the NEC Committee that sat on $14/10/2017$ was lawful 120 because it was called in accordance with Article 12 (b) (i) of the Constitution by the vice chairperson and the quorum was realized as specified under **Article 10 (b) (ii)** of the Constitution. Counsel argued that the evidence of one, Okirol Mary was fabricated since one Ssali John had testified in cross examination that the same - Okirol did not travel to Kampala but stopped in Katakwi and that because of this 125 she did not attend the meeting, yet she signed the attendance register. Counsel criticized Lochan Martin for alleging that he signed the attendance only for transport refund. Relying on Adam Bale & others vs Willy Okomu, HCCA 21/2005

135 **o** counsel submitted that the contradictions between Martin Lochan's evidence and that of Ssali were major and intended to mislead the court and that therefore it ought to be rejected. Counsel argued that the renewal of contract having been lawfully effected and the claimant having accepted the renewal, the contract was valid. On the unlawfulness of the termination counsel argued that the contract having been valid for 5 years, terminating it without a reason was contrary to **Section 68 (1) of the Employment Act.** Counsel contended that the allegations in the witness statement of Tumuhimbise Zadock that the claimant's performance was unsatisfactory were not true and were raised before the standing committee as a reason for not renewing the contract without according the claimant any opportunity for defense. This was, according to counsel contrary to what was contained in the hand over report and the minutes of the National Executive council which showed good performance of the claimant indicating that the claimant was unlawfully terminated.

145 150 **o** 155 In response to the above submissions, counsel for the respondent argued that the contract of the claimant was a fixed term contract which the standing committee resolved on 7/10/2017 not to renew by 16/10/2017 when it was due to expire. Counsel submitted that under **Article 13(a) of the Constitution** of the respondent the power to employ was delegated by the National Executive Council to the standing committee. Relying on the evidence of the National Chairperson, Zadock Tumuhimbise, counsel argued that the claimant was recruited by the standing committee which according to him was the organ that had power to terminate his services by not renewing the contract. In counsel's view, the evidence of the National Vice Chairperson that the standing committee had no power to review the contract of the claimant should be ignored by the Court because she was one of members of the committee who initially declined to renew the contract. He submitted that the Chairperson organized the special NEC meeting for the purpose of procuring an illegal contract for the claimant.

Referring to **annexure A7, at page 144 of the Respondent trial bundle,** counsel submitted that the intention of the invitation of the NEC was for the purpose of handing over office, which according to counsel was in contradiction of the evidence of the vice chairperson. In any case, counsel argued, handing over office was not an urgent matter calling for an Executive council meeting. According to counsel, the chairperson did not delegate power to the vice chairperson making

the meeting illegal. Counsel argued that the meeting was in contravention of **Article 10(b)** which provided for the National Chairperson to be the one to call a special meeting after a written notice of two weeks. He contended that urgent meetings in accordance with Article 13(a) were handled by the standing committee. Counsel argued strongly that the NEC lacked the necessary quorum since Ssali John, Okiror Mary and Martin Lochan, were not able to make it to the meeting, although the attendance sheet showed they were present. Counsel asked court to disregard exhibit 27 (the attendance register) because according to him, it was tainted with fraud.

Counsel relied on various authorities including **National Social Security Fund Vs Khainza Pauline, Labour Dispute Appeal No. 24/2018** for the legal proposition that a fixed contract lapses with the lapse of the period within which it is meant to lapse or after fixing the purpose for which it is made and the employer need not give any reason for refusal to renew the same. Counsel submitted therefore, that the renewed contract of the claimant was invalid since according to him the claimant with deceit and with the help of the vice chairperson called for the NEC meeting which was inconsequential because its decision was illegal.

**o**

## 180 **Decision of court**

There is no doubt that the claimant's contract was ending on 16/10/2017 and that the Claimant was informed/ reminded that the standing committee resolved not renew the contract when it sat on 07/10/2017. There is no doubt that on 14/10/2017 the National Executive Council sat and decided to renew the claimant's contract and the Claimant accepted the same on 16/10/2017.

The case for the claimant is that the NEC as the appointing authority had power to renew the contract of the claimant at the time it did and therefore the claimant had a valid contract by the time he was terminated.

190 The case for the respondent is that the Standing Committee having been delegated by the National Executive Council to appoint employees had authority not to renew the contract as it indeed declined to do, and the NEC did not constitute the requisite quorum to overturn the decision of the standing committee, having been convened by the vice chairperson contrary to the Constitution.

We shall interrogate these two position in order to determine which in our view is the correct position.

The Constitution provides under **SECTION TWO: APPOINTMENTS:**

# **"2.1 Appointing Authority.**

2.1.1 The power to appoint, confirm in appointment, promote, reward and award employees and the power to discipline and remove them from the employment of UNATU is vested in the National Executive Council for positions classified as NT 1 to NT 2, and the General Secretary for positions below NT 2, in addition to positions that shall be delegated to him/her by the National Executive Council.

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# 2.1.2 **Categorization of employees.**

For administrative purposes, the staff of UNATU shall be classified into following categories.

# **a) Senior Management**

The employee, who is appointed to the position of General Secretary, shall be in salary scale NT 1 and shall be classified as Senior Management.

# 210 **b) Management staff**

Employees who are heads of departments, (i.e. Accountants, are in NT 2 of the grading structure and shall be classified as management staff.

# **c) Supervisors.**

Employees appointed to supervise and control groups of staff (or whose units are likely to grow, to manage group of staff) in specialized technical areas, like project coordinators be classified as supervisors. These shall belong to NT3 of the grading structure.

# **d) Staff**

All employees who are appointed in the salary scale level four shall be classified as staff.

# **e) Support staff**

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225 Employees in the NT 5 of the grading structure shall be designated as support staff."

230 It is clear from the above Section of the Constitution, as counsel for the claimant pointed out, that the power to appoint employees of a certain category was vested in the NEC and the power to appoint another category was vested in the Secretary General. Those in positions classified as NT 1 to NT 2 were preserves of NEC and those below NT 2 were to be the preserve of the General Secretary. The General Secretary, according to this section in addition to those in the category below NT 2, shall have delegated authority to appoint or remove from office persons in such other categories that the National Executive Council shall determine.

235 The position of the Secretary General is clearly in the senior management category and therefore is the preserve of NEC in as far as appointment, discipline and termination of employment is concerned. The evidence of the respondent as well as the submissions of counsel for the respondent were to the effect that the standing committee had delegated power to appoint and not to appoint the Secretary General. Counsel relied on **Article 13 of the Constitution** which provides:

## 240 **"ARTICLE 13 WORKING COMMITTEES**

The National Executive Council shall appoint the following working committees to attend to various activities of the Union and in order to advance its goal. Each committee shall meet at least three times a year, with the General Secretary, the Deputy General Secretaries and any other Secretariat Staff, as need may arise.

- 245 Committees, may, when need arises, co-opt a member whose expertise may be required. - a) The Standing Committee

The standing committee shall consist of:

**i.** The National Chairperson (chairperson)

The Vice National Chair person

- 250 - iii. The National Treasurer - iv. National Secretary for welfare and disputes - v. National Secretary for planning and organizing - vi. National Secretary for Education, Professional Standards and Discipline

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ii.

#### vii. The National Secretary for Women Affairs

#### **viii. Other two members**

## **The functions of the Standing Committee shall be to:**

- Manage the affairs of the Union between meetings to the National Executive Councils in accordance with the constitution, bye laws and standing orders and instructions; - Implement the decisions of National Delegates' conference and the National Executive Council; - Act on all emergency and pressing matters that cannot be delayed till the following National Executive Council Meeting; - Submit a report to each meeting of the National Executive Council; - Liaise with organizations of similar aims and objectives in other countries through the National Secretariat; - Recommend to the National Executive Council members of delegation to International Conferences/ workshops/Seminars/courses; - Seek ways and means of establishing cordial relations with international bodies; - Formulate policies on international relations and make recommendations to the National Executive Council accordingly; - Devise ways of ensuring good public relations in the Union; - Spell out the terms and conditions of service for all workers of the Union; - Prepare and, when necessary , revise performance evaluation forms for workers of the Union; - Recommend to the National Executive Council and create new posts and abolish old ones considered to be redundant; - 280 Council a staff • Evolve and recommend to National Execution development programme for consideration; - All matters relating to the Uganda National Teachers' Union and other employees' organization; - Perform such other duties as may be delegated to it from time to time by the National Executive Council."

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**o**

9 | P a g e Counsel for the respondent particularly referred to **bullet 3 of Articles 13** as providing delegated power to appoint and discipline the Secretary General.

We agree to the submission of counsel that under this Article the standing committee could attend to emergency and pressing matters that could not be delayed till the following National Executive Council Meeting.

We have perused the minutes of the standing committee meeting held on 7/10/2017 which was specifically to do with renewal or none renewal of the contract of the claimant. It is clear from the minutes that the claimant expressed interest of renewal of contract on 16/6/2017. It is apparent from the minutes that

- certain issues were considered against the renewal and a decision was taken by 295 majority not to renew the contract. However, nothing in the minutes suggests anything to do with the emergency of the item discussed, and the fact that it could not wait for the NEC meeting. We think that this having been a Constitutional provision, it was incumbent upon the standing committee to - expressly state in the minutes how the agenda item was an emergency. This was 300 necessary especially when under Article 10 of the Constitution, the National executive council is established as the supreme and executive authority particularly with powers under Article 10 C VIII to "Employ, discipline and dismiss employees of the union and determine their remuneration, condition of

employment and job description." The NEC in our view had an over site mandate 305 as to activities of all committees established by itself.

**Article 13 of Constitution, the last bullet gives power to the standing committee to** perform such other duties as may be delegated to it from time to time by the National Executive council. This provision in our view emphasizes the supremacy and over site role of the National Executive Council. The Article fell short of specifically delegating the power to employ or discipline the employees but under bullet 10 and 11 it provided for power of the committee to spell out terms and conditions of service for all workers and to perform evaluation of workers. In our considered opinion if the National Executive Council had intended to delegate such power, it would have specifically provided for the same.

However, we form a strong opinion that even if the standing committee had been properly delegated to perform the duty of recruitment or discipline, being delegated authority, the NEC could any time reverse the decision of the standing

320 committee. The question therefore is whether the NEC that sat on 14/10/2017 was legally convened and if so whether the decision arrived at to reverse the standing committee's decision was by a properly constituted quorum and therefore legal.

**Article 10(b)(iii) of the Constitution** provides:

**"A special meeting of the National Executive Council may be convened on the authority of the National Chairperson in Consultation with the General Secretary or at the request of two thirds majority of the members. The quorum for the National Executive Council shall be 40% of the total membership of the council."**

**Article 12(b)(i) of the Constitution** provides:

**o "(b) The Vice National Chairperson shall**

330 **(i) Assume the duties and responsibilities of the National Chairperson in his/her absence and enjoy the benefits granted to the chairperson. In case the National Chairperson is out of office without justification for a period exceeding 3 months, the office of the chairperson shall be assumed by the Vice until by-elections are conducted at the next delegates' conference.**

> The evidence on the record suggests that whereas the claimant had slated to travel to Denmark, he cancelled his travel by letter dated 07/10/2017 addressed to the National Chairperson. It is on this very date that the standing committee declined to renew the contract of the claimant. The National Chairperson had been slated to travel to Kigali for a conference due for 13th to 16th October 2017. It seems to us that the claimant having known his previous position of having his contract not renewed, cancelled his trip to be able to concentrate on how he could reverse the position. This did not click to the ears of the Chairperson who had chaired the standing committee meeting that declined to renew the contract and he continued to pursue his travel to Kigali. The claimant secured this opportunity to engage with the Vice Chairperson in an attempt to reverse the position and consequently, while the Chairperson was out of the office in pursuit of the conference in Kigali, the Vice Chairperson in conjunction with the claimant, convened a special NEC meeting that reversed the decision of the standing committee.

**3O**

We have no doubt in our minds that under **Article** 12(b)(1) of **the** Constitution, the Vice Chairperson had power to call a special meeting in the absence of the chairperson. There is nothing in the Constitution to suggest that the vice Chairperson could exercise the power of the Chairperson only and only when the latter was outside the country.

It was the contention of counsel forthe respondent that the vice chairperson organised the special Executive meeting in order to defeat the decision of the standing committee and in order to secure for the claimant an illegal contract. We agree with this contention of counsel only to the extent that the intention was to defeat or reverse the decision of the Standing Committee. The claimant having cancelled his trip to Denmark, called a consultative meeting with the Board of Trustees which sat and gave advice that the NEC should sit and receive and consider the recommendation of the standing committee on the non-renewal of the contract.

365 370 375 The claimant invited the meeting after the chairperson had rejected his appeal and later on wrote to despise the same meeting and the manner it was called. Well, the decision of the meeting in our view was only advisory with no legal consequence, although it showed support for the position of the claimant that he should have been heard before the standing committee took a decision to decline renewal of his contract. We agree with the submission of counsel for the respondent that this is not the legal position. An employer is not obliged to give any reason or to accord a hearing to an employee for not extending a contract limited by time. However, it is clear that despite these developments, the Chairperson continued with his plan for a trip in Kigali oblivious of the fact that the claimant was planning a National Executive Council meeting which could reverse the decision of the standing committee. In our view the fact that he did not proceed to Kigali could not nullify proceedings of NEC.

380 The National Executive Committee, was called and it sat on 14/10/2017 only to reverse the decision of the standing committee. Counsel for the claimant contended that the NEC meeting was illegal for being convened without sufficient notice as expounded under **Article 10(b) of the Constitution.** We have carefully perused Article 10(b) of the Constitution. Although it provides

for two weeks' notice for the NEC meeting, the Article at the same time provides for a **special meeting** in the following terms:

**"(iii) A special meeting of the National Executive Council may be convened on the authority of the National Chairperson in consultation with the General Secretary or at the request of two thirds - majoring office members. The quorum of the National Executive Council shall be 40% of total membership of the council."**

The contention of counsel for the respondent was that unless the provision of two weeks' notice was complied with, the meeting was illegal since according to him, urgent matters were handled by the standing committee in accordance with **Article 13(a) bullet 3** (which we have already discussed).

400 We agree with the submission of counsel for the claimant that whereas Article 10(b)(i) that provides for meetings three times in a year and Article 10 (b) (i) that provides for two weeks' notice deal with ordinary routine meetings of NEC, Article 10 (b)(iii) refers to a special meeting which is held on authority of the National Chairperson in consultation with the Genera Secretary or at the request of two thirds of members. As pointed out earlier if the respondent had intended to deter the vice Chairperson from performing this function it would have specifically stated so. Consequently, it is our holding that the meeting was properly called by the Vice Chairperson who had authority under **Article 12(b)** of the Constitution to assume duty and responsibility of the chairperson in his or her absence. 395

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## The next question is **whether the NEC meeting was properly constituted in reaching the decision that it did?**

The claimant adduced evidence of the minutes of the National Executive Council and evidence from the Vice Chairperson who called the meeting as well as that of one Kasirye Willy who recorded the minutes as a member of NEC. Kasirye was emphatic that a total of 14 members attended the meeting with 7 members registering absence with apology. It was the contention of the respondent that Adia Grace (RW1), Ssali John (RW2), Okiror Jacinta (RW5) and Lochen Martin (RW6) though invited for the NEC meeting, they did not attend the same.

415 We have carefully perused the attendance-list of the members, and the names as well as signatures of the witnesses appended thereto. The attendance list **C27**

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shows Lochen Martin as Number 3 and Okirol Jacinta as No. 1. In cross-examination about their appearance on the attendance register together with their signatures, both of them did not deny signing their names on the attendance list. Their testimony was that they signed the list not because they attended the meeting but

- 420 425 because they wanted to be paid transport refund. We do not accept this assertion. Having not denied signing the attendance on 14/10/2017, they could only successfully deny having attended the meeting by proving that they were coerced or forced to sign the attendance, since a signature is an acknowledgement of ownership of the document so signed. Both of them were members of a top organ of the respondent and evidence that they signed a document which had the effect - of reversing a decision of an important committee of this organ, simply because they wanted a refund of transport, is not only unacceptable to us but must be condemned in the strongest terms. The attendance list clearly showed that it was an attendance for **"the special National Executive Council meeting of 14/10/2017"**

430 and it is not believable that Lochen Martin signed as No. 3 and Okirol Jacinta signed as No. 13 having not attended the meeting.

435 440 Even if they did not attend the meeting, by affixing their names as well as their signatures, they acknowledged full support of the decision that was taken by the committee. They could not in law take the transport or any other allowance for attendance of a meeting they were at the same time disassociating themselves with. Contrary to the submission of counsel for the respondent, the attendance sheet did not show the attendance of Adia Grace (RW1) and Ssali John (RW2). Since Okirol Mary Jacinta (RW5) and Lochen Martin (RW6) have failed to convince us that they did not attend the meeting, the submission of counsel for the respondent that the attendance list is tainted with fraud is misplaced and has no merits.

Consequently, it is our holding that 14 members attended the NEC meeting and were party to the decision taken to reverse the decision of the standing committee.

445 **Article 10(a)** comprises the composition of the NEC at a total of 20 members. The required quorum under Article 10(b)(ii) was 40%. It is very clear that 14 members were exceeding the required 40% of attendance. Consequently it is our holding that the decision taken to reverse that of the standing committee was by a properly constituted quorum.

Having already held that the National Executive Council had power to reverse a decision of the standing committee (or any other committee) and having found that the National Executive council meeting held on 14/10/2017 was properly and legally constituted, the decision arising therefrom was binding on the respondent.

Accordingly the claimant's contract was renewed on 14/10/2017 and after acceptance by the claimant on 16/10/2017 it was binding on both parties.

455 The first issue is decided in the affirmative.

The second issue is **whether the claimant was unlawfully terminated?**

The claimant's contract was renewed on 14/10/2017 for five years. His evidence was that on return from Kigali, the Chairperson demanded that the claimant hands over office and eventually on 23/10/2017 he handed over. The contract having been validly renewed it could only be terminated in accordance with the law and in accordance with its own provisions. **Section 68(1) of the Employment Act** and **Section 66 of the Employment Act** are emphatic on the requirement of a reason and a process of fair hearing before termination. The same is echoed in International Labour Organisation Convention, 1982 (No. 158) which provides under Article 4:

> **"The employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking establishment or service."**

The contract of the claimant provided under **Clause 7.4** for notice of termination and under **Clause 7.3** for termination on grounds of poor performance. **<9**

At the time the renewed contract was terminated no evidence of poor performance was put to the claimant in accordance with **Section 66 of the Employment Act** and no reason was expressed by the respondent in accordance with **Section 68(i).** Accordingly we find that the claimant was unlawfully terminated.

The last issue is **what remedies are available to the parties.**

(a) **General/aggravated damages**

Counsel for the claimant submitted vehemently, relying on various cases in justification of issuance of an order for compensation for unlawful termination in general and aggravated damages. We have appreciated the authorities cited by counsel.

We have appreciated the claimants' testimony under paragraph 41 of his witness statement that it was humiliating of him for the respondent to allege that he conducted illegal meetings and that he was in office illegally yet he had a running contract for 5 years and that this dented his image as Chief Executive Officer of the respondent. However, we think a proposal of 500,000,000/= as damages is out of the ordinary in the circumstances of this case taking into account his salary and the nature of his job. Taking into all the circumstances, particularly that his contract had just begun and he was looking at a future working career, we hereby grant 50,000,000/= as general damages.

**o**

#### (b) Loss of income of salary arrears from unlawful termination to date of Award

This prayer is rejected because it is futuristic. This court in the case of Simon Kapio Vs Centenary Bank LDC 300/2015 held

**"It is well established that the only remedy to the person who was wrongfully dismissed was damages.... therefore, the claim for prospective earnings cannot stand...."**

#### (c) Gratuity

The claimant in cross-examination and re-examination confirmed that he was paid his gratuity accruing from the first contract in 2020 after he had come to court.

500 Counsel contended that since under **Section 46(6) of the Employment Act,** the claimant should have been paid within 7 days on termination of his employment, the respondent should be ordered to pay interest of 25% for the delayed gratuity.

505 We do not think it is fair to order payment of interest on gratuity since by its nature gratuity is an expression of gratitude to the employee for the performance done. We think this would hurt the good gesture of employers to offer gratification to its employees. This prayer is therefore denied. Gratuity for the 5 years not worked for is not awardable because, as already pointed out, no employer should be forced to pay gratitude to an employee for a period he has not worked. In our view it is ridiculous for an employer to express gratitude to an employee for no work done. This prayer is therefore denied.

## (d) Payment of salary in lieu of notice

The contract of the claimant was renewed on 14/10/2017. His termination and removal from office was on 23/10/2017. He had worked for hardly 11 days. Although under **section 58 of the Employment Act,** someone is only entitled to notice after he or she has ben employed for more than 6 months, the contract of the claimant provided under clause 7.4 for 3 months' notice or payment in lieu irrespective of how long the claimant would have worked, under **Section 27(2) of the Employment Act** nothing prevents the application of a clause in the contract which is more favourable to the Employee than the provisions of the Act. Since the contract of the claimant did not connect the notice period to how long the claimant would have worked on termination, the notice period under Clause 7.4. of the service contract is enforceable. Accordingly the claimant shall be entitled to 14,490,000/= being salary in lieu of notice of 3 months

#### 525 (e) Severance Allowance

Under **Section 87 of the Employment Act,** severance allowance is only payable when an employee has worked for a period of six months or more. The first contract of the claimant having expired by effluxion of time, we do not think it constitutes continuous service under this section of the law. The claimant's service was about 11 days which does not qualify for severance allowance.

#### (f) 1 month pay for failure to give a hearing

Under **section 66(5) of the Employment Act,** power to award compensation for failure to accord a hearing to an employee under **Section** 66(4) is specifically given to a labour officer in addition to the power under **Section 78 of the Employment Act.** Unlike the labour officer who is limited in the total amount he/she may award under **Section 78,** this Court is not limited in award of general damages and so it would be unjust for the court to make orders in compensation under **Section** 66(4) in addition to granting Award in general damages. This prayer is denied.

# **Q**

## (g) Interest:

The amounts awarded shall earn interest of 15% from the date of the Award till payment in full.

545 In conclusion, the claimant having proved his case against the respondent, an Award is entered in his favour in the following terms:

- 1) The National Executive Council being a superior organ which delegated certain power to the standing committee, it was empowered under the constitution of the respondent to reverse a decision of the standing committee. - 550 2) The National Executive council having reversed the decision of the standing committee, legally renewed the contract of the claimant. - 3) The termination of the renewed contract of the claimant without due process was contrary to the law and the contract of the claimant. - 4) The claimant shall be entitled to 50,000,000/= as general damages. - 5) The claimant shall be entitled to 14,490,000/= as 3 months' salary in lieu of notice. - 6) The awarded sum shall earn interest at 15% per year from the date of this Award till payment in full. - 7) No order as to costs is made.

### 560 Delivered & signed by:

1) The Hon. Head Judge, Ruhinda Asaph Ntengye **/V-"**

#### Panelists

- 565 1. Mr. Bwire John Abraham - 2. Ms. Julian Nyachwo - 3. Mr. Patrick Katende

Dated:6/05/2022

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