Tumuhaire v Jet Speed Air Services Ltd. (Civil Suit No.1045/99) [2000] UGHC 67 (11 February 2000)

Full Case Text

# IN THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

# CIVIL SUIT NO.1045/99

JOAN TUMUHAIRWE. PLAINTIFF

### VERSUS

JET SPEED AIR' SERVICES LTD. DEFENDANT

BEFORE THE HONOURABLE MR. JUSTICE G. TINYINONDI.

### JUDGMENT

The Plaintiff herein claimed for -

- (a) general damages for wrongful dismissal, - (b) one year's unpaid annual leave, - (c) unpaid salary for 19 months, and - (d) interest and costs of the suit. *b*

The basis of 'this claim was contained in the plaint which read, inter alia, as follows:-

letter dated 7th May 1997, the defendant a Customs Clearing Assistant for a pay "4 . employ the plaintiff as later on expressed in the letter dated 29th July offered to that was 1997, which was as follows By a

| (a) | Basic salary | | 150,000/ | | |-----|---------------------------|-----------|-----------|----| | (b) | Housing allowance | | 50,000/= | | | (c) | Medical allowance | | 20,000/= | | | (d) | Breakfast lunch and | allowance | 30,000/= | lb | | (e) | Transport allowance | | 31,000/= | | | | | Total | 281,000/= | |

**2-** *0* I

**'***I* **0** and Copies of the two letters are attached hereto as annexture "A" "B" respectively.

- 5 . The plaintiff accepted the offer of employment and on the 8th July, 1997, she started working. - 6 . contained in the defendant's document known as "Guidelines to annexture "C" . staff", copy whereof is attached hereto as The plaintiff's terms of employment were clearly and expressly. - 7. 8th October, 1938. without notice, terminated the plaintiff's services'. wrongfully, The defendant in breach of contract on the - 8 . The plaintiff states that the defendant had also in breach of never paid the plaintiff's emolument package as 19 months between 6-5-1997 until 3rd October, 1998 . contract. • *i* stated in paragraph (4) or any part thereof for the period of - 9 . The plaintiff further states that although she had worked for more than a year for the defendant, the defendant had never granted her an annual leave nor given her any part payment in lieu of leave. - 10 . a result, of the defendant's breach of contract stated above in paragraph 7-9, damages. The plaintiff has as suffered loss and - (a) Unpaid'' salary for the period between 6-5-1997 October 3rd., 1998 - 19 months at Shs.281,000/= per month 5,339,000= - Unpaid leave for 2 years. 562,000= - Salary for 2 months in lieu of notice 562*,* 000= Total 6,457,900=

**/o**

- 11. By a letter dated 7th January, 1999 the plaintiff's advocates demanded from the defendant to pay the said sum, but the defendant has refused and or neglected or any part thereof. - 12. The cause of action arose at Entebbe, and the plaintiff resides at Entebbe, whereas the defendant has a business office .at Entebbe International Airport, therefore this honourable court has the jurisdiction to hear and determine this suit.

WHEREFORE the plaintiff prays for judgment against the defendant $for:-$

- Special damages of Shs.6,457,900/= as stated in paragraph- $(a)$ $(10)$ . - Interest on (a) above at the rate of 22% per annum from $(b)$ the date of filing the suit until payment in full. - $(c)$ General damages for breach of contract. - Interest on (c) at the rate of 8% per annum from the date. $(d)$ of judgment until payment in full.

Costs of the suit." (e)

$\cdot$

In its written statement of defence the Defendant alleged that -The contents of paragraph 3 are denied and the Defendant $"3.$ contends that the Plaintiff has no cause of action against the Defendant and the plaint be struck out as being frivolous and vexatious.

- The contents of paragraphs 4,5,6,7,8,9,10 and 11 of the plaint $4.$ are denied and the Plaintiff shall be put to strict proof thereof. - In the alternative, and without prejudice to the foregoing, 5.

the Defendant shall aver that:

- (a) On 7th May, 1997, the Plaintiff was appointed to the post of Customs Clearing Assistant and it was an agreed term of the contract of employment that confirmation was subject to a probation period of three (3) months during month,;s notice. The Defendant shall rely on the' Guidelines to staff attached to the plaint as copy of the appointment letter Ref:JAS/ADM/38/97 dated 07/05/1997 attached hereto and marked Annexture ''D" "C", and a terminable on one which the Plaintiff's employment was - (b) The Defendant was induced to employ the Plaintiff wheji she held herself out, by representing and warranting to the Defendant, that she was then reasonably competent to perform the services for which she was engaged under the contract of employment. - (c) In fact, been reasonably competent to perform the said employment. As a result, the Plaintiff's employment was not confirmed for\* poor performance and/or misrepresentation and the Defendant denies the contents of the letter attached to "B" . the plaint as the Plaintiff was not then nor has she since - (d) The;Defendant, therefore rescinded the said contract-of employment and by a letter dated 30th July, 1997, under Ref:JAS/ADM/38/97, duly determined the Plaintiff's employment as on 30th July, 1997, and paid the Plaintiff *as* A copy of the said letter is hereto attached and marked Annexture "E". a sum of Ug. Shs.40,000/= in lieu of one month's notice.

- $(e)$ In the premises, the wrongful dismissal alleged by the Plaintiff is denied. - $6.$ In the further alternative, the Defendant contends that it was an implied term of the said contract of employment, implied to give the same business efficacy that the Plaintiff was capable. and competent to perform the said employment/services and/or that she would perform the same with due care and skill. On the contrary, she performed poorly and in the premises, she was in repudiatory breach of the contract of employment, whereby the Defendant was entitled to terminate her employment. Thus the wrongful dismissal alleged is denied." At the hearing both Counsel agreed on one issue only, to wit, the Defendant employed the Plaintiff. They agreed on two issues, namely

- $\mathbf{1}$ . Whether the Plaintiff's contract of employment was wrongfully terminated. - If so, what remedies. $2.$

PW1, the Plaintiff, testified as hereunder. She started working for the Defendant on $7/5/1997$ on receipt of a letter written by the Defendant to her, exhibit "P1". The terms were permanent terms. She was employed as a Customs Clearing Assistant for which experience she had obtained on the job with another company in 1990. Her remuneration was Shs.281,200/= (two hundred eighty one thousand two hundred shillings only) per months as contained in a letter given to her on 29/7/97 whose original copy she gave to the Defendant's Managing Director on his request to assist him process a 1999 licence for clearing and forwarding from the Uganda Revenue

Authority which letter the said Managing Director never returned to her when she asked for it.

PW1 testified further that on 7/1/98 she was given "Staff Guidelines", exhibit "P2" which stipulated terms of employment. However, exhibit "P1" did not state the salary she was to get nor the terms of employment. Exhibit "P2" did not stipulate that were subject to three months' probation before employees confirmation. On 18/12/98 she went to the Managing Director, Hendrick Baryaza, to ask for her salary like on many other previous occasions the Managing Director had told her to be patient as he was dealing with Government which took long to pay him. On this occasion he told her that her services were terminated. She denied that she was dismissed in writing on $30/7/97$ .

$10$

9. T

In her further evidence the Plaintiff testified that for all the time she worked for the Defendant without any payment she survived by selling milk bought using a loan from her brother. On 13/2/98 she was arrested for theft of a dinning table cloth while she was still in the Defendant's employment and continued to work, with Defendant. She was taken to court and acquitted on 29/3/99. The Plaintiff did not call any witnesses.

DW1, Hendrick Baryaza, testified as follows. He was the Managing Director of the Defendant company. The Plaintiff joined their employment on 7/5/97 on temporary terms. Because he was found not fit due to lack of experience and always late was stopped from working on 30/7/97. The dismissal was in writing. The Plaintiff

salary was not determined because the person who interviewed her was not around when she approached DW1 for salary. Eventually they decided to pay her Shs.40,000/= (Forty thousand shillings only) per month.

When he was referred to exhibit , DW1 testified that that was the appointment letter he gave to the Plaintiff and that it did nor stipulate that the Plaintiff When shown exhibit "P2" DW1 testified that that was not his company's document. During her employment period with the Defendant the Plaintiff never got involved in any offence. The company employed |0 qualifications. Therefore it was not strange that the Defendant was to pay her Shs.40,000/ (Forty thousand shillings only) per month. The Defendant gave its employees written Staff Guidelines after their confirmation. guidelines because the Defendant wanted her qualifications and experience. Like the Plaintiff the Defendant did not call witnesses. "Pl" was on temporary terms. the Plaintiff as Customs Clearing Assistant although she had no However the Plaintiff was given only verbal to first prove her

During submissions, Mr. Tayebwa for the Plaintiff contended that although in paragraph 5(a) of its written statement of defence the Defendant alleged it had dismissed the Plaintiff by letter, the letter was not exhibited. That although the DW1 stated that the Plaintiff was dismissed during her probation both exhibits did not mention whether the Plaintiff was employed on probationary or permanent terms. Counsel submitted that the to Plaintiff proved she was dismissed on 18/12/98 for two reasons, A np2" "Pl" and

wit, that during cross-examination she testified that while she was still employed by the Defendant she faced criminal charges in March Counsel invited Court to answer the first issue in the affirmative. she was 1998; secondly, that after serving the Defendant for seven months given the Guidelines to Staff Conduct in January 1998.

As regards the second issue Counsel for the Plaintiff argued chat the Plaintiff was entitled to

- (a) Salary for 19 months at the rate of Shs . 281,200/= per month i.e. 5,342,800/=; - (b) Salary in notice as per paragraph 3 of the Guidelines, He prayed for Shs.281,200/=; lieu of - (c) Leave for 19 months which would earn her months' salary years. because she served l1^

Mr. ' sshe failed to live up to the standard of her employment. On the first issue, Mr. Tibesigwa, who appeared for the Defendant submitted that the Plaintiff's dismissal was proved lawful by DW1 evidence that she was subject to three months' probation in which

EMPLOYMENT DECREE, No.4/1975. That under section 23 (1) of • the Decree the Plaintiff would be entitled to 7 days' notice or payment **2-0** in lieu of that period. That if it were true the Plaintiff salary was Shs.281,200/=, would then be" entitled to Shs.65,730/ in lieu of notice. Counsel monthly salary was Shs.281,200/=. wanted Court ?to note that the Plaintiff failed to prove that her On the second, issue. Counsel relied on the provisions of the which fact the Defendant denied, the Plaintiff

**ar**

Counsel further submitted that exhibit "P1" was governed by the Decree by virtue of Ss. 8(1), 10 and 11 thereof which section imposed obligations on both the employer and employee. That exhibit "P1" contravened S.11 of the Decree by its omission of the requirements of the section. That on that account it was a contract prohibited by S.8(1). Which in turn meant that the Plaintiff could not found her claim on such a contract.

Counsel further argued that since the terms of her employment were in exhibit "P1" the Plaintiff could only prove the terms by the document itself. That oral evidence to prove that her wages were Shs.281,200/= per month was excluded by S.90 of the EVIDENCE ACT. That since exhibit "P1" was silent on the wages the Plaintiff had failed to strictly prove this item which was one of special damages.

In his further submission Counsel stated that even if this contract did not contravene the Decree, it would still be void for being uncertain in the essential terms of wages and duration which were conspicuously absent from exhibit "P1". He cited TOM BWETTE vs. MULONDO: HCCS 833/89 for his submission.

Mr. Tayebwa replied to the above submissions in the following manner. The shortfalls emanating from exhibits "P1" and "P2" were a responsibility of the Defendant who authorised them. It would be unfair to let the Defendant enjoy the benefit of its shoddy draftsmanship of its documents. Counsel asked Court to apply the doctrine of contra proferentum to the interpretation of these

exhibits i.e. in favour of the Plaintiff since the documents were drafted by the Defendant.

Reverting to, the first issue*,* contravened section 11 of the Employment Decree in that .the exhibit did not mention the duration of the contract and the rate of the wages and the method of calculation. thereof. That therefore the Plaintiff was prohibited from relying on a contract that was prohibited by the Decree. I will herebelow reproduce the provision: length that exhibit "Pl" defence Counsel argued at great

"11. Every contract required to be in writing shall contain all such.particulars as may be necessary to define the rights and obligations of the parties thereto, and without prejudice to the generality of the foregoing shall in all cases include

- (a) ) - (b) - (c) - (d) the'--duration of the employment and method of calculating this duration; - (e) wages, 'the manner and periodicity of payment of wages, advances; the advances and the manner of repayment of any such the rate of the wages and method of calculating such - (f)

such matters as may be prescribed. ii (g)

My response to the submission of defence Counsel is as follows. the first issue he conceded that the employment contract in On lawful and lawfully terminated by the Defendant within the three months' probationary period. Having thus eaten his cake the second issue, to have the same cake. Secondly, - in paragraph 5 (a) of of defence the employment contract was admitted. The said statement of defence was never amended. Counsel's submission therefore was without founded on any logic or instruction from his client. issue was Counsel cannot turn round, on the written statement

Furthermore I looked at the rest of the provisions of the Decree Counsel. I looked at Section 8 of the Decree where it is provided and was not able to trace the prohibit alluded to by the said

"8 . No person mav employ another, or be employed, under any contract- of service except in accordance with the provisions [Emphasis is mine]. of this Decree."

In my considered view the provision is not mandatory and it is not account of the use of the word *I5~* prohibitory on "may".

Furthermore Section 10 of the Decree provides

n 10(1). A contract of service for a period of six months or more , or for a number of working days totalling six months or more shall be in writing."

contrast to subsection (1) of this subsection is In directive. It directs that a contract of service for a period of six months to be in writing whereas that lesser period may be oral. In addition subsection 3 of section 10 provides or more for a section 8

(3) Where a contract is required or agreed to be in writing <Vand the failure to comply with such requirement or agreement

is due to the wilful act or omission of the employer, he shall be guilty of an offence."

It is clear that the subsection creates an offence by the employer contract void.. An employee on such a contract can still pursue his rights under it.'So much about the defence Counsel's submission. who omits to write the contract. It does not render an unwritten

How does this not employment was wrongfully terminated? I have resort to two documents, to wit, exhibit which was the Defendant's "Guidelines to Staff" and exhibit the Plaintiff letter of appointment. Both documents were admitted in paragraph 5(a) of the written statement of defence and in the testimony of DW1. The said (p.5) pretend to list down the causes of termination. In actual fact the only causes listed are "dismissal .for and will have been seen from paragraphs 5 and *6* of the written statement of defence and DWl's evidence the Plaintiff was dismissed because she was found unfit, possessed no experience for the job and was always reporting late for duty. Of course annexture to the written statement of defence, a photocopy of the alleged letter of dismissal contained only the ground of It tendered in evidence. This Court therefore the Defendant's reasons for dismissing the Plaintiff. I so find and hold was wrongful. Without . prejudice to the aforesaid holding, I shall attempt an elaboration "P2" "Pl" , "E" "poor performance" . "Guidelines" misconduct" was not was not given That being the case the dismissal Court decide on whether or , compulsory retirement in the interests of the company: "voluntary termination" of either junior or senior staff. As this contract of

on the wrongfulness of the Plaintiff's dismissal. The Defendant's H clearly offend the rules of natural justice for a hearing. No mention is made of the offence or warning an employee against whom disciplinary proceedings may be instituted. And no mention is made of that employee's right to be heard in his defence. True to the Defendant's tradition built from the n DW1 did not prove to Court how the Plaintiff was found 'unfit on what occasions she was late for duty and what experience was required of her but was found wanting. Above all DW1 was not aware about any warning given to the Plaintiff and whether or not she was required to defend herself but failed to do so. I was therefore not able to consider this case. The light of decided cases like CLOUSTON vs. GQRRY 91906) AC 122; KIGUNDU vs. BARCLAYS BANK [1973] EA 569; BOSTON 'DEEP SEA FISHING CO. 91886-90) ALL ER 65 . Guidelines" Guidelines"

*n*

To the second issue It is settled that and benefits that have accrued for the complete period of service. [See: HEALEY vs. SOCIETE ANANYM FRANCALS RUBASTIC [1917] 1KB 946; SOUTHERN HIGHLANDS vs. TOBACCO UNION LTD: [1960] EA 490; QMBANYA vs . GALLEY & ROBERTS: 1951 EA 522 a wrongfully dismissed employee is entitled to recover arrears of salaries due to

Let me start 'by resolving the issues of probation and the period served by the Plaintiff. DW1 conceded that this aspect was not provided for in exhibits and "P2". He was, however, quick to testify that-DW1 stated "Pl" "it is not true she (the Plaintiff) permanent terms" was employed on . When cross-examined about exhibit "Pl"

. I turn to the Decree (ante)*,* section 23(2) thereof. terms" "the letter does not state the Plaintiff was appointed on temporary

A probationary period of service period of six months in the first instance but may, with the agreement of the employee be extended for a further period of " (2) . not more than six months." exceed a shall not

**6°**

In connection with the foregoing, I will review the evidence of the parties regarding the period served by the Plaintiff. PW1 testified to 7/5/97 18/12/98. DW1 testified to 7/5/97 30/7/97. The Plaintiff having testified to the wrongful dismissal the burden shifted on to the Defendant to justify the dismissal and point out the dates. DW1 failed in both. I hold that the employed on permanent terms and worked for the Defendant for- a period of nineteen (19) months. Plaintiff was

The Plaintiff testified that she was not paid for all the period she worked. She testified how during that period she was forced,to borrow money from her brother to buy milk packs and sell them for survival. The Plaintiff further testified that in a letter da.ted it because DW1 had taken it to assist him get a for 1999 but had not returned it to her on were alleged in para 4 of the plaint. However, in this respect the burden shifted to the disprove the entitlements. Instead DW1 testified that Plaintiff's salary was not determined because the person who //entitlements. *could not* buy. PWl's explanation for failure to tender this letter. clearing licence demand. These " the 9/7/97 her entitlements were specified. That she could not tender Of course I defence to interviewed $\dot{\text{h}}$ er was not around when she approached me for her salary". Let me remark here that throughout the proceedings DW1 impressed me as a callous slave merchant. He told nothing but lies about the employment of the Plaintiff. I could not believe his pack of lies. Hear how he capped his evidence:

"Later we determined the Plaintiff salary at Shs.40,000/= per month."

$\infty$

He does not explain who did the determination and on what basis the amount was determined. At no point did DW1 tender any record of any payment to the Plaintiff. In fact the Defendant deliberately withheld useful information on the whole contract. The said information include, but is not limited to the seniority of a Customs Clearing Assistant a post to which the Plaintiff was appointed, the monthly salary of the Plaintiff, the duration of her employment, the probationary period, the offences and disciplinary measures for these offences.

I would approach this impasse by looking at section 19 of the Decree (ante). It reads -

" Where service is terminated under section 20 and 24 of this Decree, the employer shall pay to the employee wages or other remuneration due to the employee under the contract of service."

I would then go on to seek wisdom in the statement in $\underline{\text{VOL. 8}}$ HALLSBURY'S LAWS OF ENGLAND (3rd Ed.) paragraphs 212 and 213. They are to the - (90 to p.32.) - Effect that the court may imply a term $\mathfrak 2$ in a contract so as to give the contract that efficacy which the

parties intended the contract to have. I will also rely on HCCS 638/93: MOSES BULENZI as he then was, stated, vs. UCB where G. M. OKELLO, J,

n terms or period of the contract ofof clause in the contract for the termination notice, the court will rely onof that type of contract. If there is no the court will determine a reasonable period notice (3 or 6 months) which if given the termination' would be proper and the employee would if he wrongfully dismissed." for evidence of such usage, employment is not agreed on, have nd where' the and there is no complaint. This is what he would have earned was not the usage, if any,

The Plaintiff claimed unpaid salary of Shs.150,000/=, housing allowance of Shs.50,000/=, medical allowance of Shs.20,0007=, breakfast and lunch allowances of Shs.30,000/=, transport allowance **'5** of Shs.31,000/=, all totalling Shs.281,000/= for 19 months resulting into Shs . 5,339,000/= . I will imply from Exh. that the Plaintiff was entitled to salary. In the absence of contrary I find Shs.150,000/ per month reasonable and I award it. evidence for the 19 months would be Shs.2,850,000/= (Two The total salary hundred fifty thousand shillings only). I make no million eighty for housing, medical, breakfast and award because they are not provided for in exhibit and it allowance unreasonable for this Court to imply them in the contract. would be "Pl" "p2" lunch and transport

H at Shs.562,000/= The provided . But the duration was not. leave was "unpaid leave for two years Plaintiff claimed for in Exhibit "P2"

It would be reasonable to fix it at eighteen (18) days per annum. I would therefore award the Plaintiff thirty six (36) days' salary in lieu of leave. This would be Shs.300,000/= (Three hundred thousand shillings only).

The Plaintiff further claimed "salary for 2 months in lieu of notice". This appears to be a reasonable and justified claim. I award her Shs.300,000/= (Three hundred thousand shillings only).

The Plaintiff also claimed general damages for breach of contract. In my considered view she is entitled to this head of damages. Considering all the circumstances - She went for nineteen months without pay despite demands made by her and the conduct of DW1 - I would award her Shs.1,500,000/= (One million five hundred thousand shillings only).

In summary I enter judgment in favour of the Plaintiff in these terms.

- (i). Shs.2,850,000/= (Two million eighty fifty thousand shilling only) being unpaid salary for the period 7/5/1997 to $3/10/1998;$ - (ii) Shs.300,00 $\dot{0}$ /= (Three hundred thousand shillings only) being unpaid leave for the nineteen months worked; - <pre>iii) Shs.300,000/= (Three hundred thousand shillings only)</pre> representing salary for two months in lieu of notice; - (iv) Shs.1,500,000/= (One million five hundred thousand shillings only) as general damages; - Interest at court rate on (i)-(iii) from the date of filing $(v)$ till payment in full;

$\ddot{\phantom{a}}$

parties intended the contract to have. I will also rely on HCCS as he then was, stated, 638/93: MOSES BULENZI vs. UCB where G. M. OKELLO,J,

n terms of or period of the contract of and there is no clause in the contract for the termination notice, the court will rely on of that type of contract. the court will determine a reasonable period for notice (3 or 6 months) which if given the termination' would be proper and the employee would have no complaint. This is what he would have earned if he was not wrongfully dismissed." evidence of such usage, If there is no where" the employment is not agreed on, the usage, if any,

The Plaintiff claimed unpaid salary of Shs.150,000/=, housing allowance of Shs.50,000/=, medical allowance of Shs.20,000/=, breakfast and lunch allowances of Shs.30,000/=, transport allowance **(5** of Shs.31,000/=, all totalling Shs.281,000/= for 19 months resulting into Shs.5,339,000/=. I will imply from Exh."Pl" that the Plaintiff was entitled to salary. In the absence of contrary evidence I find Shs.150,000/= per month reasonable and I award it. The total salary for the 19 months would be Shs.2,850,000/= (Two million eighty hundred fifty thousand shillings only). I make no. award for housing, medical, breakfast and lunch and transport allowance because they are not provided for in exhibit would be unreasonable for this Court to imply them in the contract. "p2" and it

The Plaintiff claimed leave was "unpaid leave for two years" at Shs.562,000/= c provided for in Exhibit "P2". But the duration was not.

It would be reasonable leave. This Shs.300,000/ (Three hundred thousand shillings only). to fix it at eighteen (18) days per annum. I would therefore award the Plaintiff thirty six (36) days' salary in would be lieu of

**z**

The Plaintiff further claimed months in lieu of reasonable and justified claim. I • (Three hundred thousand shillings only).. award her Shs.300,000/= notice" . This appears to be a "salary for 2

The Plaintiff also claimed general damages for breach of contract. In my considered view she is entitled to this head of damages. I<? Considering all the circumstances She went for nineteen months without pay despite demands made by her and the conduct of DW1 - I would award her Shs.1,500*, 000/* (One million five hundred thousand shillings only).

In summary I enter judgment in favour of the Plaintiff in these terms.

- (i) Shs.2,850,000/ (Two million eighty fifty thousand shilling only) being unpaid salary for the period 7/5/1997 to 3/10/1998; - (Three hundred thousand shillings only) being (ii) Shs.300,000?= unpaid leave for the nineteen months worked; - Shs.300,000/= (Three hundred thousand shillings only) iii) representing salary for two months in lieu of notice,- - (iv) only) as general damages; Shs.1,500,000/= (One million five hundred thousand shillings - Interest at' court rate on (i)-(iii) from the date of filing (v) till payment in full;

- till payment in full; (vi) Interest on (iv) at court rate from the date of this judgment - vii) Costs of the suit.

G. Tinyinondi JUDGE 11/02/2000