Vita Care Uganda Limited v Miyingo (Labour Dispute Miscellaneous Application 193 of 2023) [2024] UGIC 37 (16 August 2024)


# THE REPUBLIC OF UGANDA IN THE INDUSTRIAL COURT OF UGANDA AT KAMPALA LABOUR DISPUTE MISC. APPLN. No. 193 OF 2023 (ARISING FROM LABOUR COMPLAINT No. 32 OF 2023)

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VITA CARE UGANDA LTD:::::::::

## **MIYINGO IVAN ::::::::::**

## Before:

Hon. Justice Linda Lillian Tumusiime Mugisha, Head Judge.

## **Panelists:**

- 1. Hon. Charles Wacha Angulo - 2. Hon. Beatrice Aciro Okeny

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3. Hon. Rose Gidongo

# Representations:

1. Mr. Hategeka of Muganwa, Nanteza &Co. Advocates for the Applicant.

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Mr. Lindon Semwanga of Reeve Advocates for the Respondent. $2.$

## **RULING**

## **Introduction**

$[1]$ The Applicant seeks leave of Court to appeal to the Industrial Court against the entire ruling and orders of the Labour officer Ruth Kulabako Namarwa in Labour Complaint No.032 of 2023 in which the Applicant was condemned to compensate the Respondent. It also seeks that costs of the Application are provided for.

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APPLICANT

RESPONDENT

The Application is brought under Section 94 of the Employment Act, 2006 and Order 52 Rules 1,2, and 3 of the Civil Procedure Rules s.1 71-1.

#### **Background**

According to the Applicant, between 2021 and 2022, the Respondent was contracted $[2]$ as the supervising Pharmacist of Aiveen (U) Limited and its affiliates on 1-year contracts. He was also employed as the Applicant's Operations Manager during the same period. On 24/03/2023, the Respondent filed a claim against the Applicant for Labour Exploitation, non-payment of salaries, benefits, and constructive dismissal before the Labour officer, Kampala City Authority Ms. Ruth Kulabako. The Labour Officer delivered an award in favour of the Respondent on 3/11/2023. The Applicant was aggrieved by the decision of the Labour Officer and their grievances are based on both matters of law and facts on which they seek to appeal against, hence this application.

## The following are the issues framed for resolution:

- 1. Whether the Application for leave to appeal on matters of fact and or mixed law and fact should be granted? - 2. What remedies are available to the parties? **Tarell**

# The Applicant's case

$[3]$ The Applicant's case as stated in the notice of motion and Affidavit in support deponed by Mr. Deepak Sharma, the Applicant's Executive Officer is summarized as follows: Being aggrieved by the decision of the Labour Officer in Labour Complaint No.032 of 2023, the Applicant is desirous of appealing against it on matters of law and fact arising From her orders. The Respondent was contracted as the same period, he<br>Aiveen (U) Limited and its affiliates on 1-year contracts. During the same period, he work on 9/05/2023, but on 24/03/2023, he filed a claim against the Applicant for Labour Exploitation, non-payment of salaries, benefits, and constructive dismissal before the Labour officer, Kampala City Authority.

$[4]$ The Applicant on the other hand notified the Labour officer of the Respondent's desertion as well as missing stock worth 21,312,288/- but the Labour officer took no steps to resolve the situation and instead considered and resolved the Respondents complaint.

In so doing the Labour officer failed to properly evaluate the evidence on the record and thus came to the wrong conclusion that the Respondent was not a contractor but an employee, and that he was constructively dismissed by the Applicant. To the detriment of the Applicant, she awarded the Respondent several reliefs, including an award of damages.

### The Respondents case

The Respondents case as stated in the Affidavit in reply which was deponed by the $[5]$ Respondent himself is summarized as follows:

That this application and the intended Appeal are an abuse of court process only intended to delay justice because the application does not specifically demonstrate why the Applicant should be granted leave to appeal on questions of fact and mixed law and fact. He does not dispute the fact that he was contracted by Aiveen Uganda Limited as supervising Pharmacist and as the Applicant's Operations Manager but disputes the assertion that he worked for only 3 years and that he deserted his work. This is because he was constructively dismissed from work and the notice of desertion launched against him before the KCCA Labour office on 2/06/2022 a month, after he left, was an afterthought.

He contended that the Applicant did not demonstrate the error in the evaluation of $[6]$ evidence on the record and how the conclusions made regarding his employment and termination were erroneous or how the Labour officer should have concluded the matter. Therefore, the application to vacate the reliefs granted by the Labour Officer is frivolous and it is intended to frustrate justice. It should be dismissed.

## **Submissions**

$[7]$ It was submitted for the Applicant that, section 94 (2) of the Employment Act requires a person to apply to court for leave to appeal on a questions of fact and in determining whether to grant such an application, the court should be guided by the principles laid

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down by Spry V. P in Sango Bay Estate v Dresdnar Bank & Attorney General [1971]EA 17 which Kainamura J, as he then was, cited in Ekisa George & Ors v Bank Of Africa & Ors Miscn. Appln [2017]UGcommC, 151, to the effect that Appeals are granted where there are grounds that merit serious judicial consideration. Counsel further cited Ayebazibwe v Barclays Bank Ugnada Ltd & 3 Ors (Miscn. Appln. No. 292 of 2014 for the same legal proposition and stated that the grounds of appeal attached to this Application merit judicial consideration because they seek to resolve the following questions:

- 1. Whether the Respondent as supervising pharmacist was an independent contractor or an employee? - 2. The question as to the Period that the Respondent worked for the Application as a supervising Pharmacist? - 3. The question of the deduction of the Respondent's pay as a supervising *Pharmacist without his consent?* - 4. The question of withholding the Respondent's salary as an operations Manager for the Month of March to June 2022 and - 5. Whether the Respondent was constructively dismissed from employment? - $[8]$ He also prayed that the Costs for the application are provided for. In reply Counsel for the Respondent, vehemently opposes the Application on the grounds that the singular ground raised is vague and omnibus and the application is a fishing expedition intended to delay justice. He cited *Kimbugwe v Kiboko Enterprises Limited* LDA No.13 of 2021, in which Anthony Wabwire J cited Nyero Jomo v Olweny Jacob and 4 Ors CA No.0050 of 2018, and Equity Bank (U) Limited v Kavuma LDA NO 20 of 2018, for the legal proposition that grounds of appeal must be concise and distinct objections, containing only matters relevant to the appeal which the appellant wants court to resolve. Therefore, general grounds of appeals that do not show what THE REAL PROPERTY. the appellant seeks to resolve cannot stand. $\mathbf{I}_{\mathrm{h}}$ - $[9]$ He further contended that section 94 of the Employment Act requires the applicant to move court as to why leave should be granted therefore simply making reference to the grounds as set out in the memorandum of appeal is misconceived and misleading. He prayed that court should not grant leave to appeal on questions of fact and that the application should be dismissed with costs

- $[10]$ In rejoinder, Counsel for the Applicant insisted that the notice of motion, and affidavit in support, and the various evidence attached all form an integral part of the evidence which the applicant believes the Labour officer did not read through because had she done so she would have held otherwise. He contested the Respondent's statement "to read is to humbly submit to the writer's narrations", because it is misleading and emotionally coached in disregard to the law. - $[11]$ He contended that the Applicant clearly laid down the grounds of appeal in the Notice of Appeal in accordance with Regulation 45 of the Employment Regulations, 2011, and the 17<sup>th</sup> schedule thereof, and in any case, it is no longer a requirement to set them out in the notice of motion. He invited the court to consider Article 126 of the Constitution of Uganda (as amended) which provides that substantive justice shall be delivered without undue technicalities and grant this application and argued that the Respondent did not oppose the specific grounds relating to wrong evaluation of evidence regarding wrong deductions and non-payment of salary among others. Instead, the Applicant has made submissions on the appeal and not the application. He contested the Respondent's belief that an application for leave to appeal on a matter of fact ought to be argued on its merits whereas not. According to him, all the applicant needs to do is to prove that there are prima facie grounds of appeal that merit serious judicial consideration as stated in Ekisa George & Ors v Bank of Africa & Ors MA 29 of 2017. Therefore, this application should be granted.

## **Decision of Court**

We have carefully considered the application, together with the Affidavits and $[12]$ submissions of the respective Counsel and the authorities cited.

Section 93(2) provides that, "An appeal under the section shall lie on a question of law and with leave of the Industrial Court, on a question of fact forming part of the decision of the *Labour officer.*" This means that an applicant must formerly seek leave of court before appealing on questions of facts or mixed law and fact.

It is an agreed position of the law that an appeal consists of an error of law or fact in the Judgment, which the appellant wants the Appellate court to resolve by setting aside the judgment. The error or misdirection must be concise and distinct objections, relevant to the appeal.

$[13]$ Remmy Kasule JCA, in Lubanga Jamada v Dr. Ddumba Edward CACA No. 10 of 2011, in distinguishing an appeal on a point of law and one on matters of fact stated thus:

"An appeal on a point of law arises when the Court, whose decision is being appealed against, made a finding on the case before it, but got the relevant law wrong or applied it wrongly in arriving at that finding. The Court reaches a conclusion on the facts, which is outside the range that the said Court would have arrived at, had that Court properly directed itself as to the applicable law.

The error must be because of misapplication or misapprehension of the law, A manifest disregard of the law is an error of law. A question of law is about what the correct legal test is, as contrasted with a question of fact, which is concerned with what actually took place between the parties to the dispute. When the issue is whether the facts satisfy the legal test, then a question of mixed law and fact arises."

$[14]$ The rules of this court do not provide specifically for rules in this regard, therefore the court has adopted the standards of civil procedure Rules s1-71-1 under Order 43 rule $1(2)$ which provides that:

"The memorandum shall set forth concisely and under strict heads the grounds of objection to the decree appealed from without any argument or narrative and the grounds shall be numbered consecutively."

$[15]$ The intended memorandum of appeal attached to the application contains 15 grounds of appeal framed as follows:

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- 1. "That the Labour Officer erred in fact when she found that the Respondent was not offering independent contractor services (independent contractor) as a Supervising Pharmacist of Aiveen Uganda Limited and its affiliate, Vitacare Uganda Limited, but was rather an employee for which he was constructively terminated. dilitibly $\eta_{\mathbf{u}_{\text{min}}}\|_{\mathbf{b}}$ - $\mathcal{L}_{\mathcal{L}_{\mathcal{L}_{\mathcal{L}_{\mathcal{L}_{\mathcal{L}_{\mathcal{L}}}}}}$ $\mathcal{L}_{\mathcal{L}_{\mathcal{L}_{\mathcal{L}_{\mathcal{L}}}}}$ $\mathcal{L}_{\mathcal{L}_{\mathcal{L}_{\mathcal{L}_{\mathcal{L}}}}}$ $\mathcal{L}_{\mathcal{L}_{\mathcal{L}_{\mathcal{L}_{\mathcal{L}}}}}$ $\mathcal{L}_{\mathcal{L}_{\mathcal{L}_{\mathcal{L}_{\mathcal{L}}}}}$ $\mathcal{L}_{\mathcal{L}_{\mathcal{L}_{\mathcal{L}_{\mathcal{L}}}}}$ $\mathcal$ constructively terminated from employment as an operations manager of Vitacare Uganda Limited and its business affiliates Aiveen (U) Limited and Supermedic (Uganda) Limited. - 3. That the Labour Officer erred in law when she made awards that are untenable in law that include, Basic compensation of Ug.shs 3,400,000/= (Uganda Shillings Three Million Four Hundred Thousand only), Additional compensation of Ug.shs 10,200,000/=

(Uganda Shillings Ten Million Two Hundred Thousand only), Severance allowance of Ug.shs 8,500,000/= (Uganda Shillings Eight Million Five Hundred Thousand only), Supervision pay of Ua.shs 4,800,000/= (Uganda Shillings Four Million Eight Hundred Thousand only), Refund of Ua.shs 2,800,000/= (Uganda Shillings Two-Million Eight Hundred Thousand only), Salary arrears of Ug.shs 4,000,000/= (Uganda Shillings Four Million only), compensation order of Ua.shs 3,400,000/= (Uganda Shillings Three Million Four Hundred Thousand only), and an Additional compensation of Ug.shs 10,200,000/= (Uganda Shillings Ten Million Two Hundred Thousand only) all amounting to Ug.shs 33,700,000/= (Uganda Shillings Thirty Three Million Seven Hundred Thousand only).

- 4. That the Labour Officer erred in law when she made various awards where general damages were provided for. $\mathbf{I}_{\text{I}\text{I}}\mathbf{I}^{\text{I}}$ **Allaha** - $\eta\mu^{(1)}$ 5. That the Labour Officer erred in law when she held that she didn't have jurisdiction to illitro determine the Appellant's counterclaim. - 6. That the Labour Officer erred in fact when she failed to properly evaluate the evidence on record and thus came to the wrong conclusion that the Respondent was an employee of the Applicant as a Supervising Pharmacist. **That!**

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- 7. That the Labour Officer erred in fact when she wrongly evaluated the evidence on record; relating to deductions, non-payment of salary, entitlements and came to the wrong conclusion that the Respondent was constructively terminated from employment by the Applicant. - 8. That the Labour Officer erred in law when she failed to take into account the directives and or law of the Council of the Pharmaceutical Society of Uganda in interpreting the Respondent's Contract for service as Supervising Pharmacist and thus came to the wrong conclusion that the Respondent was an employee not a contractor of the (1)1111111111 HITTELL Applicant. - 9. That the Labour Officer erred in fact when she held that the Respondent worked on a fulltime basis as a Supervising Pharmacist when there was contrary evidence on record that he did not and thus came to the wrong conclusion that the Respondent was holding the office of a supervising pharmacist as an employee not independent contractor.

- *10. That the Labour Officer erred in fact when she held that the Applicant assigned work to the Respondent when there was evidence to the contrary showing that the Applicant only used the Respondent's license as its supervising pharmacist.* - *11. That the Labour Officer erred in law and fact when she failed to appreciate the fact that the Respondent's roles as a Supervising Pharmacist are statutory based and not provided for nor assigned byApplicant and thus coming to the wrong conclusion that the Respondent is an employee, not independent contractor.* - **'<sup>h</sup> I)<sup>1</sup>** *12. That the Labour Officer erred in fact when she held that the Respondent worked from 8:00 am to 5:00 pm as a Supervising Pharmacist ofAiveen (U). Limited and is by that fact an employee independent contractor of the Applicant.* - *13. That the Labour Officer erred in fact when she misconstrued the facts relating to the Respondent's employment as a supervising pharmacist; That he was assigned to work without any liberty to determine the mode of doing the assigned work, that he was provided tools of trade, that he was under the supervision of the Applicant, that he was subject to performance evaluation and thus came to a wrong conclusion that the Respondent is an employee of the Applicant, not an independent contractor.* - *14. That the Labour Officer erred in fact when she misconceived, misconstrued, and failed to take into account the circumstantial evidence led by the Applicant on desertion from employment and came to the wrong conclusion that the Respondent was constructively dismissed from employment.* wlX.

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- *15. That the LabourOfficer erred in law and fact when she failed to take into account the fact* , *that Vitacare Uganda Limited never contracted Miyingo Ivan as its Supervising Pharmacist but rather Aiveen Uganda Limited and that the claim against it is barred in law for,being filed against a wrong party. ''* - [16] We are of the considered opinion that all the grounds are framed in general terms because they do not point out the specific evidence or errors of judgement or distinct objections that occasioned a miscarriage of justice to warrant judicial consideration. As provided under Order 43 rules <sup>1</sup> and 2 the grounds of appeal ought to point out the errors observed and the decision which the appellant believes occasioned a miscarriage of justice. In *Nyero Joma* v *Olweny Jacob and 4 others* CA No 0050 of

2018, which was cited in Kimbugwe Abdallah v Kiboko Enterprises LDA No. 013 of 2021, where Mubiru J, stated thus:

"Properly framed grounds of appeal should specifically point out the errors observed in the course of the trial, including the decision, which the appellant believes occasioned a miscarriage of justice. Appellate Courts frown upon the practice of advocates setting out general grounds of appeal that allow them to go on a fishing expedition at the hearing of the appeal hoping to get something they themselves do not know. Such grounds have been struck out numerous times."

The intended grounds as framed are too general and offend the provisions $[16]$ of Order 43 rules 1 and 2 of the civil procedure rules. The grounds are argumentative and repetitive. It seems that as stated in Nyero v Olweny (supra), they are intended to enable the applicant to go on a "fishing expedition" which is unacceptable.

Even before the court can consider an Application for Leave to Appeal on grounds of fact o mixed law and fact, the grounds must be tenable in law. In the circumstances, this application has no merit it is dismissed with costs.

Signed in Chambers at Kampala this **16<sup>TH</sup>** day of **August 2024**.

Hon. Justice Linda Lillian Tumusiime Mugisha. **Head Judge**

**The Panelists Agree:** Hon, Charles Wacha Angulo $\frac{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\mathcal{H}_{\math$

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3. Hon. Beatrice Aciro Okeny

16<sup>th</sup> August 2024 2:30 pm

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and the **Allinn**

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## **Appearances**

- 1. For the Applicant: - 2. For the Respondent - 3. The Respondent - 4. Court Clerk

- Mr. Solomon Jjaggwe. - Mr. Lindon Semwanga. - Mr. Miyingo Ivan. - Mr. Christopher Lwebuga.

HIIIIII

THE REAL PROPERTY.

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Delivered and signed by:

Hon. Justice Linda Lillian Tumusiime Mugisha, **Head Judge, Industrial Court**

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**DIAMAN** (Illinia)

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