THE REPUBLIC OF UGANDA
IN THE INDUSTRIAL COURT OF UGANDA AT KAMPALA
LABOUR DISPUTE 061/2016
ARISING FROM LD NO.232
UGANDA DEVELOPMENT BANK LTD ……………………………… RESPONDENT
THE HON. CHIEF JUDGE, ASAPH RUHINDA NTENGYE
THE HON. JUDGE, LINDA LILLIAN TUMUSIIME MUGISHA
1. EBYAU FIDEL
2. ROSE GIDONGO
3. HARRIET MUGAMBWA NGANZI
The ruling arises out of a Preliminary objection raised by the respondents under Section 71(1) and (2), 93(1) of the employment Act, 2006 and Section 32 of the Limitation Act, cap 40.
The claimant was an employee of the respondents until her termination on the 31/01/2013. On the 5/05/2016 she filed a claim against the Respondent for alleged unfair termination.
The Respondents denied the Claimants claim and sought for the dismissal of the same with costs.
Before the commencement of the hearing however, the Respondents raised a Preliminary point of law that the case had been referred to this court by the Commissioner Labour yet she had received and handled it outside the prescribed statutory time contrary to Section 71 (1) and (2) of the Employment Act 2006. According to the Respondents the Commissioner Labour referred this matter on the 15/04/2016 and it was filed in Court on the 5/05/2016, after she had failed to dispose of it within the stipulated 8 weeks.
Counsel contended that section 3(1) of the labour Disputes (Arbitration and Settlement) Act 2006, provides a basis for reporting a labour dispute to a labour officer, and Section 71(1) and (2) of the Employment Act, 2006, stipulates the time within which it should be reported. Counsel emphasized that Section 71 (1) and (2), gives an employee who has been continuously employed for at least thirteen weeks a right to complain to a labour officer within 3 months of the date of dismissal or such later period as the employee shall show to be just and equitable in the circumstances. She contended that the claimant had not reported within the prescribed time, hence the preliminary objection.
Counsel further submitted that where a point of law raised disposes of the suit wholly the court was empowered to dismiss the suit under Order 6 rule 29 of the Civil Procedure Rules or first hear the suit on the points of law raised under Order 15 Rule 2 of the Civil Procedure Rules (Civil Procedure Rules). She prayed that the suit is dismissed as had earlier been done in the case of APOLLO TWESIGYE VS AIDS SUPPORT ORGANISATION LDR No. 292 of 2015 which this Court dismissed on a Preliminary Objection that stated that it was time barred because it had been filed before the labour officer after the prescribed 3 months.
According to her the record clearly showed that the claimant had filed her case before the labour officer out of time therefore it should be dismissed.
In reply it was submitted for the claimant, that the essence of section 71 (2) of the Employment Act was to give unfettered discretion to a labour officer to determine whether to entertain a given case even after the 3 months within which it should have been reported had elapsed. Counsel submitted that in SURE TELECOM VS AZEMCHAP LDC No.008 OF 2015 this court’s holding was to the effect that there was no requirement for the labour officer to give reasons for exercising this discretion and he or she could exercise his or her discretion if the employee showed just and equitable circumstances. Counsel submitted that the assertion that a labour complaint should be lodged to a labour officer first is misplaced because the commissioner Labour under section 9(3) of the employment Act has the same powers of a Labour officer.
Counsel also argued that the Commissioner invited the Respondent to a mediation meetings on 2/11/2015 by letter dated 26/10/2015 and two subsequent ones which the respondents failed and or refused to attend. According to counsel by so doing the Commissioner had undertaken to handle the matter. He further submitted that unlike the case of APOLLO TWESIGYE, the Commissioner in the instant case entertained the matter by inviting the parties for mediations. Counsel asserted that by failing to attend these meetings the respondents had locked themselves out of not making the preliminary objection then and could not invoke equity at this point.
Counsel distinguished APOLLO TWESIGYES case from the instant case. He stated that in APOLLO TWESIGYE (supra) court only allowed the objection because the claimant in that case did not file it as an appeal against the decision of the labour officer as provided under section 94 (1) of the Employment Act, 2006 and the labour officer had out rightly dismissed the case for being time barred, while in the instant case the claimant first lodged the case with the Commissioner labour who exercised her discretion and entertained the matter. The claimant only filed it in this court when the labour officer failed to dispose of it within the prescribed 8 weeks in accordance with Section 5(3) of the Labour Disputes (Arbitration and Settlement) Act, 2006 (LADASA). He compared the three cases as follows: in Twesigye’s case, the matter was refused for being time barred and the claim in court was not an appeal from the decision of the labour officer, in Azemchap, the labour officer handled the case despite it being time barred and the matter was referred as an appeal from the decision of the labour officer and in the instant case the labour officer handled the case by inviting parties for mediation session and the matter was a reference to this court by the labour officer.
Counsel concluded therefore that the instant case having been entertained by the labour officer who was exercising her discretion, gave the claim legitimacy and therefore the case should be entertained by this court, and the Preliminary Objection dismissed.
In rejoinder the respondents insisted that the claimant’s submissions reinforced the fact that the she filed her complaint to the Labour Officer 3 years after the stipulated three months had elapsed and therefore she had violated section 71(1) and (2) of the Employment Act 2006. Counsel insisted that section 71(2) was worded in mandatory language and therefore it was mandatory for the complainant to give reasons to show that the matter was just and equitable for the Labour Officer to hear it out of time. She relied on IGA vs MAKERERE UNIVERSITY (1972) EA 66, whose decision was to the effect that the claimant had to put herself in the limitation period and prove grounds that could exempt her from being barred by limitation.
Counsel further argued that the discretionary power given to the labour officer lay in the decision taken by exercising such a discretion and not in the reasons given for exercising such discretion as this court held in SURE TELECOM (supra).
She insisted that whereas in SURE TELECOM, both parties appeared and the issue of limitation was brought to the attention of the Labour Officer, in the instant case the issue was never brought to the attention of the Commissioner Labour by claimant. She insisted that given an opportunity the respondents could have proved to this Court that they had actually attended the mediation except that on those occasions the Commissioner Labour would be out of office. She insisted that their non-attendance of the mediations did not negate the fact that the complainant had to show cause to the Commissioner Labour that there was just and equitable cause for the matter to be hard out of time which was not done and there for the Preliminary Objections should be upheld.
THE DECISION OF COURT
We have carefully studied the submissions and the record and find as follows:
“Section 71 Unfair termination
An employee who has been continuously employed for thirteen weeks immediate before the date of termination, shall have the right to complain that he was unfairly terminated.
A complaint made under this section shall be made to a labour officer within three months of the date of dismissal, or such later period as the employee shall show to be just and equitable in the circumstances.”
It was not disputed that the claimant reported a labour complaint to the Commissioner or labour. It is also not disputed that the complaint was lodged way after the prescribed three months prescribed under section 71(2). The Employment Act under Section 9(3) clearly provides that the Commissioner Labour has the same powers as those of a labour officer. It was also a fact that the Commissioner labour entertained the claimant’s complaint, although it had been reported to her outside the prescribed time.
It was the respondents contention that the Commissioner had not given reasons to show that the claimant had shown that it was just and equitable to file the matter out of time hence this objection.
Whereas we agree with Counsel for the respondent that where a point of law raised disposes of the suit wholly the court was empowered to dismiss the suit under Order 6 rule 29 of the Civil Procedure Rules or first hear the suit on the points of law raised under Order 15 Rule 2 of the Civil Procedure Rules, the record shows that the Commissioner in accordance with Section 13 of the Employment Act 2006, which gives the labour officer power to investigate and dispose of complaints by among other things “… attempting to settle any complaint by conciliation, arbitration, adjudication or such other procedure as he or she thinks appropriate and acceptable to the parties…” had entertained the matter by instituting a mediation. By her letter referring the matter to this Court, the Commissioner stated that she had invited both parties for a mediation meeting but the Respondents did not show up. We did not find any evidence controverting her letter. We also found no evidence to show that she had given any reasons for her decision to entertain the matter yet it had been reported to her outside the prescribed time.
The parties juxtaposed the cases of SURE TELECOM VS BRAIN AZEMCHAP (Supra) where the labour officer entertained a matter that had been filed out of time and this Courts holding was to the effect that the labour officer did not have to give reasons for exercising his or her discretion to handle the matter out of time, under section 71 (2) of the Employment Act, and APOLLO TWESIGYE VS AIDS SUPPORT ORGANISATION (Supra) where the labour officer exercised his discretion not to entertain the matter because it had been filed beyond the 3 months prescribed under same Section. Both Counsel however were in agreement that the discretionary power given to the labour officer under section 71 lay in the decision taken by exercising such a discretion and not in the reasons given for exercising such discretion.
Counsel for the claimant argued that by inviting the parties to mediate the matter the Commissioner had decided to handle the matter and there was no a requirement for her to give reasons for doing so. In UNITED BANK FOR AFRICA VS GMBH which was cited with approval by this court in LUBANDI EMMANUEL VS UGANDA ELECTRICITY GENERATION COMPANY LTD, Justice J.S.C stated that;
“… in the exercise of its discretion … the court will have regard to all the particular facts and circumstances of the case before it. Discretion is thus not an indulgence of judicial whim but the exercise of judicial judgment based on facts and guided by the law of the equitable decision… to exercise his discretion properly the judge was bound to look at the facts surrounding the case.
Whereas we agree with counsel for the respondent that the labour officer should have been satisfied that sufficient cause had been shown by the claimant before she could entertain the matter filed beyond the prescribed time set under Section 71(2), It is our considered opinion that by attempting to mediate the matter she had exercised her discretion to handle the matter out of the prescribed time, even though she did not give reasons for doing so. We think that she addressed her mind to the circumstances under which the complaint was filed out of time in accordance with the Principles established in the case of LUBANDI(Supra) that a labour officer is understood to have lawfully exercised his or her discretion, if he or she;
“… (a) Addresses his/her mind to the circumstances under which the complaint was filed out of time and makes a decision.
(b) Entertains or handles the complaint and makes a decision even if he gives no reasons for doing so…”
The Respondents were invited to participate in a mediation on the 2/11/2015 but they did not attend the meeting and as a result they lost the opportunity to raise their objection then. She then referred the matter to this court on the 21/06/2016 after she had failed to dispose of it within the 8 weeks prescribed under Section 5 (3) of the Labour Disputes (Arbitration and Settlement) Act 2006.
This court already decided that; “… the fact that the labour officer did not give reasons for allowing the complaint beyond the time did not nullify the proceedings or the decision reached…” see LUBANDI EMMANUEL VS UGANDA ELECTRICITY GENERATION COMPANY LTD, SURE TELECOM VS AZEMCHAP LDC No.008 OF 2015.
In conclusion, we find that the Commissioner properly exercised her discretion under Section 71 to entertain the matter when it was reported out of time and therefore it was properly filed before this Court. The objection is disallowed.
No order as to costs is made.
Delivered and signed by:
1.THE HON. CHIEF JUDGE, ASAPH RUHINDA NTENGYE ………………………..
2.THE HON. JUDGE, LINDA LILLIAN TUMUSIIME MUGISHA …………………………
1. EBYAU FIDEL ….………………………
2. ROSE GIDONGO ……………………………
3. HARRIET MUGAMBWA NGANZI …………………………..