Muhenda v Uganda Electricity Distribution Company Limited (HCCS NO. 730 OF 2005) [2005] UGCommC 81 (12 April 2005)

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KAMPALA**

## **(COMMERCIAL COURT)**

## **HCCS NO. 730 OF 2005**

## **MUHENDA MILTON PLAINTIFF**

## **Versus**

#### **DEFENDANT UGANDA ELECTRICITY DISTRIBUTION COMPANY LTD::::::::::::::::::::::::::::::::::::**

## **BEFORE: LADY JUSTICE M. S ARACH-AMOKO**

### **JUDGEMENT:**

The plaintiff brought this suit for damages for wrongful dismissal from employment and breach of contract.

**F**

**A.**

The plaintiff was an employee of the defendant company in the position of Stores Officer with effect from the 1st October, 2003. The terms and conditions of appointment were stipulated in Standing Instruction No. 20 issued by the defendant. He was earning a gross salary ofshs 1,116,705.55 (one million, one hundred and sixteen thousand, seven hundred and five shillings, and fifty five cents).

Sometime in August 2004, the defendant caused the arrest and detention of the plaintiff on allegations of theft of company property. On the 2nd September 2004, the plaintiff was summarily dismissed from the defendant's employment on allegations of abuse of office and attempted theft.

*k*

The plaintiff's case is that the dismissal was wrongful since the internal audit which was carried out by the company's internal auditor exonerated him from any wrong doing.

He further contends that he was on the 2/6/2005 cleared ofthe alleged theft of company property by the Police. In spite of all that, the defendant has neglected and or refused to pay his salary from August 200-July 2005. Hence this suit.

The defendant's stand is that it was entitled to dismiss the plaintiff summarily for serious misconduct after appearing before the disciplinary committee. The plaintiff has no good case against the defendant.

The issues before court were:

- 1) Whether the plaintiff's dismissal was lawful. - 2) Whether he is entitled to the reliefs sought.

# *Issue No <sup>1</sup>': Whether theplaintiff'<sup>s</sup> dismissal was lawful )*

This is the key issue. It is an agreed fact that the plaintiff was summarily dismissed. In Electricity-vs-Uganda Airlines Corporation [1984] H. C B 40. It was held inter alia that:

*"2. Summary dismissal is dismissal without notice. At common law, to justify such dismissal the breach ofduty must be a serious one, a breach amounting in effect to repudiation by the servant of his obligations under the contract of employment such as disobedience of lawful orders, misconduct, drunkenness, immorality ,assaulting fellow workers, incompetence and neglect".*

*c*

The dismissal letter exhibit P3, reads as follows:

' **SUMMARY DISMISSAL**

**)**

*)*

*You will recall that you appeared before a Management Disciplinary committee that convened on the 19th and 23rd August 2004, to present your oral defence against allegations ofmisconduct earlier communicated to you vide our memo Ref: PMS/jka/68/7 of1<sup>7</sup>th August 2004.*

*Resulting from the described hearing, and other factual findings of its investigations, management has adduced sufficient evidence to hold you responsible for abuse of office and attempted theft of one drum of 50mm conductor at the company's Central Stores Lugogo.*

*You are here reminded that the above stated actions constitute gross misconduct, which the company regards as impairing your efficiency and respectability of service contrary to the provisions of Regulation 42 of the UEDCL employee manual and that, for this reason you are hereby summarily dismissedfrom the company service...."*

According to this letter, the plaintiff was dismissed for abuse of office and attempted theft. Regulation No 21 of Standing Instruction No 20 states as follows:

*'•SUSPENSIONFROMDUTY WITHOUT PA Y*

*(a)Serious misconduct*

*Where an employee is suspected ofserious misconduct, he may be suspended from duty without pay from that date until investigations have been made by the company. The company must satisfy itself that the investigations have been carried out in strict compliance with the principles of natural justice,*

> *T /*

*a*

*including the right to be heard, and an investigating officer not being biased. In the absence ofsufficient evidence after investigations by the board ofthe alleged serious misconduct, he will be re-instated in the services and be paid his wages infullfor the days he has been on suspension"*

Regulation 22 reads:

*If however after investigations, the company is satisfied that an employee is guilty ofserious misconduct, from whoever cause , which is regarded by the company may "22 DISMISSAL FROM THE BOARDS SERVICE as necessarily impairing the efficiency of the employee, respectability of the service and trustworthiness of the employee himself, it dismiss the employee from the company's service with or without*

*notice"* (underlining is mine)

According to paragraph <sup>1</sup> of the dismissal letter, the plaintiff appeared before the Management disciplinary Committee that convened on the 19th and 23rd August 2004 to present his oral defence against allegations of misconduct which were earlier communicated to him vide the memo Ref: PMS/jkaz68/7 of 17th August 2004.

The plaintiff did not deny this. In his oral testimony he stated:

*"I appeared before the disciplinary committee twice. It was about two days after my releasefrom detention. I was asked whether I knew or had any idea about the stolen drum. I was availed <sup>a</sup> copy ofthe audit report made by the Senior Internal Auditor of UEDCL, Mr. Sebugwawo. I wasn't informed of the decision of the Disciplinary Committee. I only received <sup>a</sup> letter for dismissal two weeks after the Disciplinary Committee hearing"*

*s'*

**!1**

He repeated this testimony in cross examination where he said:

*"I appeared twice before the UEDCL disciplinary committee. I was informed ofthe charges. There were:*

- *1) Embezzlement abuse ofoffice* - *2) Abuse ofoffice* - *3) Theft".*

Clearly, the allegation that he was not given an opportunity to be beard by the disciplinary committee is unfounded. The allegation that the Defendant did not follow the procedure in Standing Instruction No.20 is also without merit. He was even on probation. The answer to this issue is accordingly in the negative.

## Issue No 2: Remedies

In view of my holding on issue No 1, the answer to this issue is also negative. He has not made out a case of unlawful dismissal. He is not entitled to any of the remedies sought,

In the result, Court finds no merit in this claim. It is dismissed with costs to the defendant.

**A'f** ..........

M. S Arach-Amoko

## Judge

Judgment delivered in the presence of:

- 1) Agaba Justus, Legal Assistant to Mr Akampulira Michael, Counsel for the defendant. - 2) Plaintiff

3) Mr Magambo Victor, Counsel for defendant

4) Mr Okuni Charles C/C

$\ddot{h}$

M. S Arach-Amoko

Judge

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