Mafumu v Harris International Limited (Labour Dispute Miscellaneous Application 6 of 2020) [2024] UGIC 64 (28 November 2024)

Full Case Text

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# **THE REPUBLIC OF UGANDA IN THE INDUSTRIAL COURT OF UGANDA AT KAMPALA LABOUR DISPUTE MISCELLANOUS APPLICATION NO. 006 OF 2020** *(Arising Labour Dispute Reference No. KCCA/KWP/LC/021/2018)*

# **MAFUMU JOHNNY::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::;::::::::::CLAIMANT**

# **VERSUS**

# **HARRIS INTERNATIONAL LTD:::::::::::::::::::::::::::::::::::::::::::::::::::::::--RESPONDENT**

## **Before:**

The Hon. Justice Anthony Wabwire Musana

**Panelists:** Hon. Jimmy Musimbi, Hon. Emmanuel Bigirimana and Hon. Can Amos Lapenga.

#### *Representation*

- *1. Mr. Bright Natumanya and Ms. Juliana Ntongo ofM/S TARA Advocates for the Claimant.* - *2. Mr. Noel Muhangi and Mr. Ambrose Naleba of H&G Advocates for the Respondent*

#### *Case Summary*

*Employment law-referraljurisdiction-reference by two labour officers. The employee filed a complaint before a Labour Officer alleging wrongful termination, and the matter was referred to the Industrial Court. The complaint was mediated by one labour officer who was alleged to have gone on maternity leave. The officer returned and dismissed the complaint after an unusually long delay of560 days. This delay was a significantprocedural irregularity. At the same time, it was said to have been transferred and handled by another labour officer who referred it to this Court. The Court found that the referral was improper due to procedural inconsistencies and a lack of clarity in the record of proceedings. The decisions of the Labour Officers were set aside, and the file was remitted to the Commissioner of Labour, Industrial Relations and Productivity, for further action.*

# **RULING**

### **Introduction**

**[1]** The competence of the claim was challenged when this matter came for a scheduling conference. The first agreed issue was whether the Claimant's suit was competent. In keeping with the dictates of the judicial economy requiring the disposal of a preliminary issue, we directed the filing of written submissions on the point. The appellate division of the East African Court of Justice observes, in *The Attorney General of Uganda v Media Legal Defence Initiative (MLDI) and 19 Ors1* that a Court seized with a preliminary objection is, first of all, enjoined by law to determine that objection before going into the merits or substance of the case or application before it. Failure to do so amounts to an

**&#x27; Appeal No. 3 of 2016**

incurable procedural irregularity because, in the Court's view, a party should not be forced to defend an incompetent proceeding. As the present objection tests the competency of the claim, we are enjoined to consider it, as we hereby do, first. We are grateful to Counsel for their submissions, the authorities cited, and for their industry.

#### **The factual background**

- [2] The Respondent employed the Claimant as regional sales manager on the 1S1 of February 2017. On the 27th of November 2017, the Claimant was invited to attend a disciplinary hearing on allegations of selling company stock to an ex-agent below the agent's recommended price, which promoted dumping. On the 15th of December 2017, the claimant was terminated. On the 9lh of February 2018, he lodged an unlawful and unfair dismissal complaint with the Labour Officer at the Directorate of Gender Community Services and Production at Kawempe. - [3] By letter dated the 13th of February 2018, Ms. Ruth N. Kulaako, Labour Officer(LO), Kawempe Division, notified the Respondent of the lodgment of the complaint. The complaint was referenced KCCA/KWP/LC/021/2018. According to the lower record, the LO also issued hearing notices on the 26lh of April 2018, 27lh of November 2018 and 31st of October 2019. - [4] By letter dated January 7, 2019, Mr. Mukiza Emmanuel Rubasha, Labour Officer at Kampala Capital City Authority, referred Labour Dispute No. KCCA/KWP/LC/021/2018 to this Court. In his case report, Mr. Mukiza indicated the history of the dispute, which involved allegations of wrongful termination, culminating in a referral to this Court under Section 5 of the Labour Disputes(Arbitration and Settlement) Act Cap. 227. - [5] By letter dated the 6lh of October 2021, Ms. Irene Nabumba, Labour Officer at Kampala Capital City Authority, forwarded the lower record to the Registrar of this Court. - [6] In a memorandum of notice of claim filed before this Court on the 19th of March 2021, the Claimant sought a Declaration that the termination of his employment with the Respondent was wrongful, illegal, in bad faith, unjustified, unfair, discriminatory and amounts to wrongful and unlawful dismissal. He asked for UGX 2,500,000/= (Uganda Shillings Two Million Five Hundred Thousand) being the four week's wages pay as compensation for unlawful termination, UGX. 250,000,000 /= (Uganda Shillings Two Hundred Fifty Million) is general damages for the inconvenience, mental anguish and career disruption, aggravated damages, a certificate of service, and costs of the claim. - [7] In its reply to the memorandum of claim filed before this Court on the 6lh of April 2021, the Respondent denied the claim and raised various preliminary objections. It was also contended that the dismissal was lawful as the Respondent had followed procedure and the parties had reached some agreement on resolving the matter. - **[8]** In rejoinder, the Claimant challenged the propriety of the memorandum in reply and suggested that the settlement was illegal.

*LDR G06 of2020 Ruling*

**[9]** Following our directions, the parties filed their written submissions regarding the first objection, questioning the propriety of the reference before this Court.

## **Respondent's submissions**

- **[10]** Counsel for the Respondent argued that following the complaint lodged at Kawempe, the parties appeared before the LO on 14"1 March 2018, and nothing else happened until 19lh October 2019, when the Respondent wrote to the LO asking that the matter be referred to this Court. In her response, the LO indicated that she had closed the file in March 2019. In the Respondent's view, following this closure, it was inexplicable that Mr. Mukiza, another labour officer, purported to fix the dispute for hearing and referred the matter to this Court when the Respondent did not participate. - **[11]** Citing *Akoko v Uganda Manufacturers Association[2](#page-2-0), Goodman Agencies v The Attorney General & Ors,* and *Magdeline Makinta vs. Fostina Nkwe[3](#page-2-1)* Counsel argued that once Ms. Kulabako closed the labour dispute, she became *functus officio,* and therefore, Mr. Mukiza did not have jurisdiction to reopen the matter and refer the matter to this Court. Counsel also suggested that the only option for the Claimant was to appeal under Section 93 of the Employment Act Cap. 226. The Respondent's thesis was that the Claimant irregularly and illegally caused the file to move from one labour officer to another and that the reference was untenable and incompetent.

#### **Claimant's submissions in reply**

- **[12]** The Claimant's first complaint was that the Respondent's submissions were filed 36 days outside the timelines the Court gave after the Claimant had applied to proceed exparte. It was suggested that the Respondent had not come to Court with clean hands. - **[13]** In the substantive response to the preliminary objections, Counsel for the Claimant suggested that the Respondent had argued on only one ground of objection. That is correct; it was indeed the direction of the Court that the reference's propriety was in question. - **[14]** Alternatively, Counsel for the Claimant suggested that this argument was a departure from the pleadings being a new ground prohibited by Order 6 Rule 7 of the Civil Procedure Rules S.l 71-1 as expounded in *Mbambu v Monday[4](#page-2-2)* and *Uganda Breweries Limited v Uganda Railways Corporation[5](#page-2-3).* Counsel asked that the objections be overruled and the matter set down for a formal hearing. - **[15]** Regarding the events before the labour officer, it was submitted that the Claimant followed the correct procedure. He filed his complaint through Muwema & Co Advocates on 9lh February 2018, and a reply was filed on 19th February 2018. The matter came up for mediation before Ms. Kulabako on 14m March 2018 but was not resolved. Ms. Kulabako went on maternity leave, and the Claimant was advised to wait for her return

*LDR 006 of2020 Ruling AnthonyMabwi£o\*Mtivty J.*

**2 (20221 UGIC 14**

**3 Court of Appeal No. 26/2001,**

**4 [20171 UGHCCD 23**

**5SCCA16of 2001**

Page 4 of 9

or visit the Kampala Central Labour Office if he wished for an early resolution. That the file was transferred to Mr. Mukiza, who entertained it on diverse dates between 22nd May 2018 and 20lh November 2019, and that Ms. Kulabako's claim that mediation was closed in March 2019 was erroneous because the file was administratively transferred to Kampala Central Labour Office. It was also suggested that there was no proof that Ms. Kulabako was *functus officio* and that it was a common practice for labour disputes to be transferred from one labour office to another. We were asked to take judicial notice of the fact that our offices have only one labour officer, and in their absence, there was no other person to handle the disputes.

**[16]** We were, therefore, asked to overrule the objections.

# **Submissions in rejoinder**

- [17] In rejoinder, it was submitted that the application to proceed with the exparte was misconceived. - [18] We were invited to consider the objection as a matter of law relating to the competence of the claim upon the direction of the Court, not a departure from pleadings and being a point of law capable of being raised whether pleaded or not. We were asked to consider *Makula International Ltd v His Eminence Cardinal Nsubuga & AnodL* - **[19]** On competency of the claim, Counsel for the Respondent reiterated his arguments on functus officio and suggested on the authority of *Arim v Stanbic Bank (U) Ltd1* and Section 56 of the Evidence Act, Cap. 8, states that we should not take judicial notice of the transfer of files from one judicial officer to another.

#### **Determination**

- **[20]** This Court enjoys referral and appellate jurisdiction only. In *Muwanguzi v Uganda Printing and Publishing Corporation3* we observed that while the Industrial Court does not have unlimited original jurisdiction in labour disputes, it has appellate and referral jurisdiction. The Appeals come to the Industrial Court from matters arbitrated by the Labour Officers or by way of referral from the matters mediated upon by the Labour Officers or referred to this Court by any other law. Therefore, for a matter to be properly before this Court, it must have come to the Court by way of a referral under Section 4 LADASA or by way of Appeal under Section 93EA. Thus, in the present matter, once the parties agreed to consider the competency of the claim, it was the wisdom of this Court to consider this question first. - **[21]** From the Court's viewpoint, the factual background to the question of competency is fairly straightforward. It is common to both parties that a complaint was filed at the Kawempe Labour Officer on the 9lh of February 2018 by Messers Muwemea &nC0 Advocates acting for the Claimant. It is common to both parties that the Respondent

**6 [19821 UGSC 2**

**7120161 UGSC 6**

*LDR 006 of2020 Ruling Anthoi*

**8 [20231 UGIC 63**

filed a response to the complaint on the 19lh of February, 2018. Both parties also agree that the matter came before Ms. Kulabako on the 14th of March 2019. This is the full extent of the commonalities.

- **[22]** The Claimant now contends that because Ms. Kulabako went on maternity leave, the file was administratively transferred to the Kampala Capital City Labour Office and allocated to Mr. Mukiza Rubasha. On its part, the Claimant asserts that nothing happened in respect of the matter after the 14lh of March 2019, and when it sought to have the matter referred to this Court, it was advised that Ms. Kulabako had closed the file, and she was, therefore, *functus officio.* - [23] First, the Claimant does not make a very believable case of administrative transfer of the file from Kawempe to Kampala Capital City Authority. Under Rule 3(3) of the Labour Disputes(Arbitration and Settlement) (Industrial Court Procedure) Rules, 2012 *(the Rules),* a reference to this Court by a labour Officer shall be accompanied by a report of the labour officer describing the dispute and the steps taken to resolve it and all documents and information furnished to the labour officer. According to the record, on the 3r0 of October 2021, the Registrar of this Court sought the lower record. On the 5th of October 2021, Ms. Irene Nabbumba forwarded the record. Attached was Mr. Mukiza Rubasha's report, which suggested that following the Respondent's unwillingness to resolve the matter, it was referred to this Court. - **[24]** Would that render the Respondent's hypothesis correct? The Respondent submitted that it wrote to Ms. Kulabako on the 19th of October 2019 seeking to have the matter referred to this Court as it stood unresolved. By a second letter dated the 20lh of October 2019, Counsel for the Respondent invited the LO to refer the matter to this Court. By letter dated 28th November 2019, Ms. Kulabako, on the authorities of *Majidu Shire* v *Kakira Sugar Works9* and *Lion King v LIRA'0* adverted to the complaint being barred in time and dismissed it. - **[25]** There are, therefore, two competing hypotheses. The first is when Ms. Kulabako took maternity leave, the file was administratively transferred to Mr. Rubasha Mukiza. There is no evidence of this administrative transfer. Mr. Rubasha's report suggests that the matter was heard on the 22nd of May 2018,18'h of June 2018, 17lh of January 2019 and 20th of November 2019. The report did not mention Ms. Kulabako or any action she had taken. There was also no mention of the administrative transfer of the file from Ms. Kulabako at Kawempe to Mr. Rubasha Mukiza in Kampala. That does not make the proposition believable. The second hypothesis is that Counsel for Respondent approached Ms. Kulabako on the 19lh and 20th of October 2019, seeking to have the matter referred to this Court, and she dismissed the complaint. She also said she closed the file in March 2019 in her letter. This implies that after closing the file in March 2019, she reopened and dismissed it in November 2019. - **[26]** Mr. Rubasha's report did not contain a record of proceedings to support the Respondent's supposed unwillingness to resolve the matter. It did not include an

**9 LDA No. 5 of 2017 10 LD27 of 2014**

*LDR 006 of2020 Ruling Anthoi*

attendance list. And neither did Ms. Kulabako's record include the proceedings of the 14lh of March 2019, when the mediation of the complaint was closed. These inconsistencies lead us to the conclusion that the matter before the labour office was neither adequately prosecuted nor properly managed. There appears to have been laxity on both parties. The Claimant also does not provide proof of his file's administrative transfer from Kawempe to Kampala. As rightly pointed out by Ms. Kulabako, the Respondent sought a referral 560 days after the mediation date.

- **[27]** What does that mean for the proceedings before labour officers Kulabako and Rubasha Mukiza? First, under Section 12(1)(a) EA, the labour officer can investigate a complaint and attempt a settlement through conciliation arbitration, adjudication, or such procedure as he or she thinks fit. Under Section 12(1)(c)EA, the labour officer may hold hearings. Under Regulation 8(2) and (3) of the Employment Regulations, 2011 (the ER), the labour officer may require the production of documents where there is no compromise between the parties and call witnesses, after which a decision is made. And where a party does not adhere to a decision of a labour officer, under Regulation 8(6) ER, an unresolved complaint may be referred to the Commissioner before it is referred to the Industrial Court, and we shall return to this point later in this ruling. - **[28]** We are also mindful that precedent holds that labour officers are not *a* court, and proceedings before them are not expected to adhere to the stricture of formal legal proceedings.11 Indeed, in *Akoko,* while we had observed that the labour officers are the court of First Instance in labour matters, that would be incorrect because the Court of Appeal in *Eng. Mugyenzi Vs Uganda Electricity Generation Co Ltd'[2](#page-5-0)* holds explicitly that a labour officer is not a court within the meaning of the EA, and the civil procedure rules do not apply to a complaint made to a labour officer. That would bring into question whether Ms. Kulabako could be held *functus officio.* In any event, was she not *functus officio* at the time she closed the mediation? - **[29]** In *A. K. P. M. Lutaaya v Attorney General13* the Supreme Court of Uganda cited **Stroud's Judicial Dictionary14, ,** where functus officio means that (i) an arbitrator or referee cannot be said to be functus officio when he has given a decision which is held to be no decision at all, (ii) Where a judge has made an order for a stay of execution which has been passed and entered, he is functus officio, and neither he nor any other judge of equal jurisdiction has jurisdiction to vary the terms of such stay and (iii) An arbitrator or umpire who has made his award is functus officio, and could not by common law alter it in any way whatsoever; he could not even correct an obvious clerical mistake. The Court also relied on **Black's Law Dictionary15,** where the expression *functus officio* means (i) a task performed, (ii) Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority. - **[30]** From the record, Ms. Kulabako closed the mediation on the 14lh of March 2018 and then closed the file in March 2019. In her case reference dated 26th November 2019, when

**12 [2019] UGCA47**

*LDR 006 of2020 RulingAnthot*

**&quot; See Ozuu Brothers Enterprises Vs Ayikoru Milka H. C. C. R 64 of 2011**

approached by the Respondent's Counsel 560 days after the closure of the mediation, she cited two authorities for the proposition that a reference was out of time and would be dismissed. Where are these two decisions, one closing the meditation and the other refereeing it? Was she *functus officio* in dismissing the reference, having closed the same in March 2019? In our view, the lower record did not support the assertion of closure of the mediation in March of 2019. There was no decision to close the mediation so that we may that Ms. Kulabako had exercised the power of the labour officer to finally make a decision that may now invite the question whether she was *functus officio.*

- [31] We agree with Counsel for the Respondent that the proceedings were irregular but that we should not find Ms. Kulabako functus. Indeed, in the hiatus between Ms. Kulabako's alleged closure of mediation and the administrative transfer reference by Mr. Mukiza, there was procedural impropriety compounded by a lack of procedural clarity. The records in the file did not show that the matter had been administratively transferred to Mr. Rubasha Mukiza, as noted above. That would bring to the fore the propriety of Ms. Kulabako and Mr. Mukiza's decisions. And importantly, while this Court does not exercise supervisory oversight over the proceedings of labour officers in the manner that the High Court does over the Magistrate's Courts[16](#page-6-0), in the exercise of referral and appellate jurisdiction from those decisions, this Court would have judicial oversight over the decisions of labour officers. In that way, the decisions of this Court bind labour Officers in the administration of Labour Justice. The exercise of supervisory jurisdiction would have enabled the calling and giving of directions, but that notwithstanding, this Court would not permit a procedural irregularity before the labour officer to stand. For this reason, we would hold the proceedings before Ms. Kulabako and Mr. Mukiza to have been irregular, and we shall address an appropriate remedy before closing this ruling. - [32] Counsel for the Claimant suggested that the Respondent had not come to Court with clean hands. That the Respondent had filed its submissions late. That is true, but before this Court, what came into sharp focus was the propriety of the reference. We are not satisfied that this matter has been properly referred to this Court. Its root, which was filed before the Kawempe Division Labour Officer, does not connect with the tail end, a reference by Mr. Rubasha Mukiza at Kampala Capital City Labour office. These gaps were not adequately explained. There was a suggestion of administrative transfer but this was without supporting evidence. There also was an unsupported assertion of Ms. Kulabako taking maternity leave and a 560-day silence from the Respondent. As earlier observed, both the prosecution and management of LDR 006 of 2020 were wanting. - [33] Therefore, sitting as a Court of equity and observing that there were procedural irregularities in the matter before the labour office, we are compelled to invoke the maxim of equity *"ubi jus ibi remedium",* equity shall not suffer a wrong to be without a remedy. This Court invoked the maxim in *Bugisu Cooperative Union Limited v Sabakaki[17](#page-6-1)* on this maxim when we found that the actions and decisions of a labour officer that occasioned a miscarriage of justice would be set aside and directed that a different labour officer hear the dispute. A similar stance was taken in *Mayuge Sugar Industries*

*LDR 00S of2020 Ruling Anthoi*

**16 See Section 83 of the Civil Procedure Act Cap. 282**

**17 [20221 UG1C 17**

Page 8 of 9

*Limited v Baganda™* and, more recently, in *Finance and Allied Workers Union v Housing Finance Bank Limited.19* In essence, the view is that a party that comes to Court ought to have a remedy one way or the other.

- **[34]** It is, therefore, our order and direction that the twin decisions of Labour Officers, Ms. Ruth Kulabako dismissing Labour Complaint KCCA/KWP/LC/021 of 2018 on 28th November and Mr. Emmanuel Mukiza Rubasha referring Labour Complaint KCCA/KWP/LC/021 to this Court on the 7th of January 2019 did not constitute a proper reference to this Court and cannot be permitted to stand. They are each set aside. We direct that the file be remitted to the Commissioner of Labour, Industrial Relations and Productivity at the Ministry of Gender Labour and Social Development for allocation and disposal. - **[35]** Minded that this referral came to this Court improperly, it is unnecessary to consider the other arguments of Counsel, and for the same reason, there is to be no order regarding costs.

It is so ordered.

**Signed //dated anddelivered at Kampala this 28th day of November 2024.**

Anthony Wabwire Musana, **Judge, Industrial Court of Uganda**

#### **THE PANELISTS AGREE:**

- 1. Hon. Jimmy Musimbi, - 2. Hon. Emmanuel Bigirimana & - 3. Hon. Can Amos Lapenga 18

**18 (20211 UGIC 39**

**18 (20241 UGIC 35**

28th November 2024

11:03 am

**Appearances**

- 1. For the Respondent: - 2. For the Claimant:

Parties absent.

Court Clerk:

Mr. Samuel Mukiza.

Mr. Ambrose Naleba

Mr. Bright Natumanya

Mr. Naleba:

Matter is for ruling, and we are ready

to receive it.

Ruling delivered in open Court.

11:28 am Anthony Wabwire Musana, **Judge, Industrial Court of Uganda**