The industrial court of Uganda sitting at Kampala has re-echoed on the long-standing principle of the law that in all circumstances, a right to a fair hearing cannot be done away with and that in employment law, the position is that an employee Must never be condoned by dismissal or termination without affording them an opportunity to be heard.
The Industrial Court spoke through Hon. Mr Justice Anthony Wabwire Mukasa on the 19th day of April 2023 in Mugisha Nicholas V Equity Bank Uganda Ltd Labour Dispute Reference No. 281 of 2021.
The following are some of the key takeaways from the decision;
- To ascertain whether a dismissal is lawful, the Court must test whether the employer has proven that the employee has fundamentally broken the employment contract. This would entail interrogating the reason for dismissal, the process and procedure leading up to the termination, and whether there was compliance with the EA.
- The test of procedural fairness relates to the process and procedure leading to termination or dismissal, and the test of substantive fairness, which relates to the reason for termination or dismissal, are the applicable tests according to the law.
Procedural and Substantive fairness.
- Procedural fairness is provided for under Section 66EA. Before reaching a decision to dismiss an employee on the grounds of misconduct, the employer must explain to the employee why the employer is considering dismissal, and the employee is entitled to have another person of their choice present during this explanation" The employer must allow the employee to present their defence and give the employee a reasonable time to prepare a defence.
- substantive fairness requires the employer to show that the employee had repudiated the contract or any of its essential conditions to warrant summary dismissal. The test establishes whether the summary dismissal is justified. Gross and fundamental misconduct must be verified for summary dismissal. Mere allegations do not suffice. under s68EA, the employer must prove the reason or reasons for the dismissal. Proof of the reason for dismissal would require a hearing except for an admission.
- Substantive fairness subsists when a valid and substantive reason for dismissal exists. The reasons why the employer dismisses an employee must be good and well-grounded and not based on the suppositions or whims of the employer.
- substantive and procedural fairness are twin tenets. To ensure substantive fairness, the employer must maintain procedural fairness and vice versa. In other words, for a summary dismissal to be justified, there must be both procedural and substantive fairness. The absence of one or the other would render the dismissal unjustified and, therefore, unlawful.
Additionally, the court reaffirmed the following principles of law.
- General damages are based on the common law principle of restituto in integrum. Appropriate general damages should be assessed on the prospects of the employee getting alternative employment or employability, how the services were terminated, and the inconvenience and uncertainty of future employment prospects.
- Humiliating and unacceptable conduct of the Employer would be a basis for an award of aggravated damages.
- The unfairly dismissed employee is entitled to a severance allowance
- The employee whose right to a fair hearing is violated is entitled to basic compensation since limiting damages to a dismissed employee to statutory remedies is untannable at law.
Simon Nyakoojo-The Author is a Senior Legal Writer at the Judicial Sound Exponent; for a copy of the judgement or inquiries, please email us via [email protected] or [email protected].