Okwir Sam v Civil Aviation Authority (Labour Dispute Claim 262 of 2018) [2022] UGIC 66 (11 March 2022)

Full Case Text

# **THE REPUBLIC OF UGANDA IN THE INDUSTRIAL COURT OF UGANDA AT KAMPALA LABOUR DISPUTE CLAIM NO. 262 OF 2018 [ARISING FROM LABOUR DISPUTE No. 011/2018]**

# **BETWEEN**

**OKWIRSAM CLAIMANT**

## **VERSUS**

**CIVIL AVIATION AUTHORITY RESPONDENT**

#### BEFORE

1. Hon. Head Judge Ruhinda Asaph Ntengye

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### PANELISTS

- 1. Mr. Musimbi Jimmy - 2. Mr. Amos Can Lapenga - 3. Mr. Robinah Kagoye

#### AWARD

### **Brief** facts

The claimant was an employee of the respondent as driver effective 31/3/2014. He was a driver of a bus registration no. UAR 472 Y. In the course of his duty, the said bus was found packed somewhere as fuel was being siphoned out of the tank whereby a picture of the act was taken by a concerned citizen and availed to the respondent. According to the respondent the matter was investigated and later on the claimant was given a hearing after which he was terminated.

#### **Issues**

1) The claimant argued six issues while the respondent argued 2 issues. The claimant showed in his submissions in rejoinder that he added 4 issues because he *"diccovered a lot offalse hood and illegality"* on the side of the respondent during hearing.

We form the opinion that whatever issues the claimant added, what was framed originally by both parties will sufficiently dispose of the litigation;

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- a) Whether the Claimant was unlawfully terminated - b) What remedies are available?

## REPRESENTATIONS

The Claimant was represented by Mr. Olaa Gabriel from F. Aogon *& Co.* Advocates although the submissions were signed by both Mr. Olaa and someone else from Ambrose Tebyasa & Co. Advocates. The Respondent was represented by Mr. Andrew Mauso from Sebalu & Lule Advocates.

# Evidence adduced

The Claimant adduced evidence from one written witness statement by himself while the respondent filed two witness statements. Bothe parties filed relevant documents which were relied upon during the hearing.

### SUBMISSIONS

Counsel for the claimant submitted that the photo sent to the respondent by a concerned citizen never showed the claimant as the one siphoning fuel from the bus. Counsel submitted strongly that the evidence on an effective 3D tracking system showing reduction of fuel from the bus was lacking because there were major contradictions in the evidence tendered relating to the trips that the bus took, the amount of fuel in the tank, the time when the Bus was parked at port Bell road where the fuel was allegedly siphoned; and between the purported 3D reports and the vehicle authorization form.

As a result of the contradictions, counsel argued that the claimant did not siphon any fuel from the Bus tank on the alleged date of 3/3/2018.

It was the strong submission of counsel for the claimant that he was not given a fair hearing because he was not given a purported 3D report and vehicle authorization and log form to enable him prepare a defense.

Counsel argued that the vehicle authorization form eventually provided by the respondent deliberately removed service No. 95292 which would have shown that from 9th March 2018 when Mr. Onegwa added fuel of 260 litres the bus was driven up to 4/5/2018 when Mr. Kasaja added 533 litres.

According to counsel the absence of the claimant in the photo and the fact that the 3D report was generated electronically making it a mere photograph, plus a 3D report that was dated on a date conflicting with the employer, showed that the respondent did not act with Justice and equity in terminating the claimant contrary to Section 73 (11) (b) of the Employment Act. Counsel contended that no proper investigations were done given that the keys of the vehicle were grabbed from him without a proper hand over and given that the mechanics of the respondent never checked the vehicle and nor did 3D Services Ltd, the originator of the tracking system make a report.

In reply to the above submissions, counsel for the respondent contended that it was the photograph of the siphoning of fuel taken by a concerned citizen that prompted the investigations into the allegations of siphoning fuel. According to counsel the fleet management system run by 3D services corroborated the tip off from the concerned citizen and confirmed the siphoning of fuel by the claimant. Counsel argued that the allegation of the claimant that the fuel management system was faulty could not hold because in cross examination the claimant having failed to explain the fuel drop is when he claimed that the system was defective having not raised the same with management, making the allegation of the defect false.

Counsel asserted that the claimant failed to explain why the Bus was parked at Kitintale and not at the designated parking space location.

Relying on Hebert Bwengye Vs Eco bank (U) Ltd LDC 132/2015 counsel asserted that at the time of the termination there was reasonable/ genuine belief that the claimant siphoned fuel from CAA bus registration No. (JAR 472Y at Kitintale an area not designated as a valid parking. He argued that the Claimant was offered a hearing after being informed of the charges and after being given time to explain a way the same.

#### Decision of Court

We have perused all the evidence on the record constituting of witness statements and documents for each of the parties. We heard the evidence adduced in cross examination by each of the parties. The evidence suggests and is clear that the claimant was employed as a driver and as such he was in charge of Bus registration No. UAR 472Y. The evidence is clear that the instruction of the driver was that the bus was designated to park at the Transport licensing board offices. The evidence is clear that on Saturday 3 March, 2018 the bus was found parked at Kitintale and a concerned citizen took a photograph of someone siphoning fuel from the same bus. In the absence of evidence as to why and how the bus was in Kitintale, we believe that it was parked there contrary to the regulations and instruction of the respondent. In the absence of evidence that the claimant was not the one in charge of the vehicle at the material time, we are convinced that as the person detailed to drive the said bus on the material date and time, the Claimant was the one in charge of the same bus at the material time.

Having received a photograph indicating clearly that someone was siphoning fuel from the bus, the respondent was right to suspend the claimant and start investigations. The Claimant wrote a defense dated 14/3/2018 in which he did not deny the location of the bus but questioned the system used to detect the amount of fuel in the bus at the time it was fueled and after the allegation of the alleged siphoning. The claimant appeared before a disciplinary committee, which in his own words under his written statement constituted Manager Human Resources, Manager legal, Transport officer, Principal transport officer and a representative from the Amalgamated Transport and General workers union.

The contestation of the claimant was (and is before this court) that the photograph did not show that he was the one siphoning fuel and that he was not availed the report of the 3D tracking system.

The case of **Herbert** Bwengye Vs Ecobank (U) **Ltd** L. D. C 132/2015 relied upon by the respondent, held that the employer need not prove a case against the employee beyond reasonable doubt and that it was enough for the employer based on the facts of the case to show that he or she was convinced that the employee had committed a wrong.

We have no doubt in our minds that in the instant case the facts revealed that the claimant on a balance of probability committed the wrong of siphoning fuel

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from the bus he was in charge of either by himself or by someone else under his watch. This is because the vehicle was parked in the wrong place and at the time he was in charge and someone was in the picture siphoning fuel and the claimant failed to offer an explanation to these glaring facts.

According to the respondent, the 3D tracking system showed a reduction of fuel from the bus tank from 302.1 to 184.6 litres within 1 hour on the 3/3/2018 and when this is read together with the undenied fact that the Bus was at the material time parked at the wrong place, it is inevitable to conclude that the purpose of the vehicle in such a place was to have fuel siphoned from the tank. Accordingly, the termination of the claimant was lawful.

The next issue is about remedies.

All the prayers that were made by the claimant were based on the period that he would have been employed had he not been terminated.

These prayers are not acceptable first of all because the claimant was lawfully terminated and secondly they are futuristic prayers. They are therefore all denied.

In conclusion the claimant having not proved his claim, it is hereby dismissed with no orders as to costs.

Delivered & Signed by:

1. The Hon. Head Judge, Ruhinda Asaph Ntengye

#### Panelists

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**V\***

- 1. Mr. Musimbi Jimmy - 2. Mr. Amos Can Lapenga - 3. Mr. Robinah Kagoye

Dated: 11/03/2022

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