Quorum

THE REPUBLIC OF UGANDA

IN THE INDUSTRIAL COURT OF UGANDA AT KAMPALA

LABOUR DISPUTE 44 of 2017

ARISING FROM CB 021/2012

MAJIDU SHIRE ………CLAIMANT

VERSUS

KAKIRA SUGAR WORKS …… RESPONDENT

BEFORE:

  1. THE HON. CHIEF JUDGE, ASAPH RUHINDA NTENGYE
  2. THE HON. JUDGE, LINDA LILLIAN TUMUSIIME MUGISHA

PANELISTS

  1. MR. BWIRE ANRAHAM
  2. MS. JULIAN NYACHWO
  3. MR. MAVUNWA EDSON

AWARD

BRIEF FACTS

The Claimant was engaged by the Respondent as a driver in 2005, at a salary of Ugx.59,690/= he was dismissed in 2012 on allegations that he had misused the Company’s cesspool emptier Reg. UAH 623Y when he used it to draw sewage from SPA packaging Industry in Kimaka without authorization.

ISSUES

  1. Whether the Claimant’s dismissal was lawful?
  2. Whether the Claimant is entitled to the remedies sought for in his claim?

Counsel for the Respondents raised a Preliminary Objection after the cross examination of the Claimant commenced. It is our considered view that we should resolve the Preliminary issue before resolving the issues.

Counsel for the Respondent contended that the Claimant’s case was time barred. She cited TORORO CEMENT VS FORTINA INTERNATIONAL SCCA 2/2001 and OKELLO OPIO MILTON VS STANBIS BANK (U) LTD in support of her contention. According to Counsel the record shows that the Labour officer communicated about the matter on 5/04/2012, January 2013, 18/03/2013 and 24/09/2013. Counsel further stated that there was no communication between the Labour Officer and the Claimant regarding the matter or any documents adduced to show that the Claimant actually lodged his case with the Labour Officer. She contended that the labour officer got to know about the matter in 2012 but was surprised that it was only referred to the Industrial Court in 2017, 6 years after it arose. She cites Section 71(2) of the Employment Act which states:

“…

(2) 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 be just and equitable in the circumstances

…”

Counsel contended that in the instant case no evidence was adduced to show that the claimant had lodged a formal complaint before the LO within the 3 months and citing APOLLO TWESIGYE VS AIDS SUPPORT ORGANISATION and Rule 3(1) of the LABOUR DISPUTES (ARBITRATION AND SETTLEMENT) RULES, on the limitation of time she argued that clearly there was no claim made before the LO even though there was a reference to this Court on 7/3/2017, 6 years after the cause of action arose. In her view therefore this reference is baseless and untenable in law for being caught by limitation. She prayed that it is dismissed with costs. She cited LION KING INTERNATIONAL (U) LTD VS URA HCCS 004/2009 cited with approval in JULIUS RUGUMAYO VS URA L.D NO.27 OF 2014.

Counsel for the Claimant did not furnish a reply to the Preliminary Objection.

We shall proceed to resolve the Preliminary Objections first.

DECISION OF COURT

Section 93 of the Employment Act sets out the role of a Judicial Officer when he or she receives a complaint as follows:

Jurisdiction over claims; remedies

  1. Except where the contrary is expressly provided for by this or any other Act, the only remedy available to person who claims an infringement of any of the rights granted under this Act shall be by way of a complaint to a labour officer.
  2. A labour officer shall have jurisdiction to hear and to settle by conciliation or mediation a complaint –
  3. by any person alleging an infringement of any provision of this Act, or
  4. by either party to a contract of service alleging that the other party is in breach of the obligations owed under this Act.
  5. Where there is an infringement of this Act the labour officer shall have the power to order a party to comply with the provisions of this Act and in accordance with its provisions, make the aggrieved party whole.
  6. Where there is a breach of the obligations owed under a contract of service, the labour officer shall have the power to order a party to request the obligations owed and in accordance with the terms of the contract, to make the aggrieved party whole.
  7. Where the labour officer has found an infringement of the Act and a breach of an obligation owed under a contract of service, the remedy he or she shall order shall result in double recovery for the aggrieved party.
  8. A claim in tort arising out of the employment relationship; claim shall be brought before a court and the labour officer shall not have jurisdiction to handle such a claim.
  9. Where within 90 days of the submission of a complaint under this Act to a labour officer, he or she has not issued a decision on the complaint or dismissed it, the complainant may pursue the claim before the Industrial Court.
  10. A labour officer shall state the reasons for any decision taken on a complaint.

Section 93(7) provides for the time within which a labour officer must have completed a matter referred to him. A close scrutiny of Section 93(7) shows that the labour officer must make a decision on a complaint submitted to him or her within 90 days. For emphasis Section 93(7) provides;

  1. Where within 90 days of the submission of a complaint under this Act to a labour officer, he or she has not issued a decision on the complaint or dismissed it, the complainant may pursue the claim before the Industrial Court.(our emphasis)

Our interpretation of this subsection, is that the labour officer should have decided on a compliant reported to him or her on or before the 90th day before he or she refers it to the Industrial Court and not after. The subsection also empowers the complainant to pursue his or her complaint before the Industrial Court if the labour officer has not made a decision within 90 days after it is reported to him or her.

On the other hand Section 5 of the Labour Disputes (Arbitration and Settlement) Act 2006, gives the party a right to request the Labour Officer to refer the matter to the Industrial Court. It states as follows:

  1. When Labour Officer may refer dispute to Industrial Court
  2. If four weeks after receipt of a labour dispute-
  3. The dispute has not been resolved in the manner set out in section 4(a) or (c)
  4. A conciliator appointed under Section 4(b) considers that there is no likelihood of reaching any agreement

The labour Officer shall, at the request of any party to the dispute and subject to Section 6, refer the dispute to the Industrial Court.

  1. Notwithstanding subsection 1 the period for conciliation may be extended by a period of 2 weeks with the consent of the parties
  2. Where a labour dispute reported to the Labour Officer is not referred to the Industrial Court within 8 weeks from the time the report is made any of the parties or both the parties to the dispute may refer the dispute to the Industrial Court.”

Whereas Section 93(7) empowers the Labour Officer to conclude a matter submitted to him or her within 90 days, Section 5 empowers a party to request the Labour officer to refer the matter to the Industrial Court if he or she has not resolved it with 4 weeks after it was reported.

However this shall be subject to Section 6 of the Labour Disputes (Arbitration and Settlement) Act 2006, which is to the effect that the labour officer shall not to refer the matter to the Industrial Court where there are arrangements for settlements or conciliation by labour unions or employers in the Business or industry and in this case the Labour Officer shall only ensure that the parties in the matter follow the procedures of settling the dispute as provided in a conciliation or arbitration agreement where applicable.)

Section 5 of LADASA also provides that the period of conciliation may be extended for another 2 weeks. Section 5(3) further provides that where a Labour Officer has not referred the matter to the Industrial Court within 2 months after its receipt, any party may refer it to the Industrial Court by him or herself.

Similarly Rule 3(1) and (2) of the Labour Disputes (Arbitration and Settlement) (Industrial Court Procedure) Rules, 2012, provides as follows;

Reference of a Labour dispute.

  1. Where a labour officer is requested by a party to a dispute to the court under section 5 of the Act, the labour officer shall refer the dispute in the form specified in the first schedule.
  2. Where a labour dispute has been reported to a labour officer and he has not referred it to the court or otherwise disposed of it within eight weeks, a party to the dispute may refer the dispute to the court in the form specified in the second schedule.

All these time lines do not exceed the 90 days prescribed under Section 93(7) of the Employment Act, 2006. Therefore whether one proceeds under Section 93(7) or Section 5 of the Labour Disputes (Arbitration and Settlement) Act, 2006, the Labour officer must dispose of the matter reported to him or her within 90 days and not after.

Even if the labour officer chooses to apply his or her discretion to handle the matter outside the time prescribed under Section 71(2) (supra), he or she should dispose of it within 90 days from the time he commences to handle it. Section 93(7) however requires the Labour Officer to complete this matter with 90 days even if he or she undertook to handle it outside the time prescribed under Section 71(2).

In the instant case, the record shows that the labour officer handled the matter through various communications to the Respondent and the Union from 5/04/2012, 21 January 2013, 18/03/2013 and 24/09/2013. The last communication or record of action was 24th September 2013. His letter to the Branch Secretary of the workers Union, dated 5/04/2012 seems to indicate that he received the complaint within the month of April 2012. He subsequently wrote again on the 21/01/2013, 18/03/2013 and 24/09/2013 which was more than 90 days from the time he received the complaint. There is no further communication or evidence of any other action that was taken by the labour officer. Even then by continuing to handle the matter outside the 90 days prescribed under Section 93(7) of the Employment Act 2006 which cannot be condoned in law.

In the same vain the Claimant filed a reference on the same matter in the Industrial Court on 9/3/2017 over 3 years after it had been handled by the labour officer, and this was more than 90 days after the labour officer last handled the matter.

In accordance with Section 5 of the Labour Disputes (Arbitration and Settlement) Act 2006 and Section 93(70, of the Employment Act 2006, a party is expected to refer the matter to the Industrial court if it has not been within eight weeks after it was reported to the labour officer and not later than 90 days, which was not done in this case.

In light of LION KING INTERNATIONAL (U) LTD VS URA HCCS 004/2009 cited with approval in JULIUS RUGUMAYO VS URA L.D NO.27 OF 2014, we are inclined to associate ourselves with the assertion of Counsel for the Respondent that this reference having been filed outside the 90 days and it is therefore barred by time and is therefore untenable in law. In the circumstances it is dismissed with no order as to costs.

Delivered and signed by;

  1. THE HON. CHIEF JUDGE, ASAPH RUHINDA NTENGYE ………….
  2. 2. THE HON. JUDGE, LINDA LILLIAN TUMUSIIME MUGISHA ………….

PANELISTS

  1. MR. BWIRE ANRAHAM …………..
  2. MS. JULIAN NYACHWO …………..
  3. MR. MAVUNWA EDSON …………..

DATE 8th Feb, 2019

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