ISLAMIC UNIVERSITY IN UGANDA

FACULTY OF LAW

YEAR :4
SEMESTER :1
COURSE UNIT :LABOUR LAW 1
GROUP :6
LECTURER :MS BARIKE ALI MAZRUI
NAMES REGISTRATION NUMBER

1. MUGISHA NAYEBARE 119-053011-15840

KEVIN

2. KASOZI ANTHONY 121-053011-

3. KABUYE KENNETH 121-053011-24272

4. NAKALAWA SWABRAH 121-053011- 24576

5. BENY AHMED 121-053011-

6. NABWIRE SHALI 121-053011-23940
SARAH

7. TIMUJJIBWA NUULU 121-053011-24524

8. LWANGA JAMIR 121-053011-

9. AKONGOI 121-053011-25406
EMMANUEL

TASK: DISCUSS NATURE OF DISMISAL ,WRONGFUL AND

UNFAIR DISMISSAL.
‘Dismissal from Employment’ means the discharge of an employee from
employment at the initiative of his or her employer when the said
employee has committed verifiable misconduct. It is not possible to
enumerate all grounds on which a dismissal can be based, but Rule 3 (5)
of the Disciplinary Code provides that in cases of serious misconduct,
or persistence in committing less serious acts, the appropriate penalty
shall be a dismissal, especially where the infringements consist of – 1
a) theft of or willful damage to property of the employer
b) willful endangering of the property of the employer, a fellow
employee or a member of the public;
c) physical assault on an employer, a fellow employee or a
member of the public
d) inability to perform work by reason of voluntary intoxication,
whether by drink or drugs, or other misconduct of similar
gravity.

Additionally, under Rule 3(6), where a decision to dismiss is taken, the

dismissal shall be with notice, or wages in lieu of notice and summary
dismissal shall be reserved for only most extreme cases where dismissal
is the appropriate penalty. 2
A right to be heard
Section 65(1) provides that an employer before reaching a decision to
dismiss an employee on the ground of misconduct or poor performance
shall explain to the employee in a language the employee may reasonably
be expected to understand, the reasons for which the employer is
considering dismissal and the employee is entitled to have another person
of his or her choice present during this explanation 3.

Furthermore, under section 65(2) Before making the decision, the

employer shall hear and consider any representation of the employee or
his representative4.
According to section 65(3), the employer shall give the employee or his
representative enough time to prepare the representation. The law makes
it mandatory for every employee to be accorded a right to defend
him/herself and penalizes the employer a fine of a sum equivalent to one
month’s net pay who fails to accord the employee this right 5.

1
fist schedule of the Employment Act Cap 226
2
fist schedule of the Employment Act Cap 226
3
Employment Act Cap 2226
4
Employment Act Cap 2226
5
Employment Act Cap 226
This further discussed in the case of AM Jabi vs. Mbale Municipal
Council, where Court held that it was a fundamental requirement of
natural justice that a person properly employed was entitled to a fair
hearing before being dismissed on charges involving breach of disciplinary
regulations or misconduct6. An employee on permanent terms was
entitled to know the charges against him and to be given an opportunity
to give any ground which he relied on to exculpate himself. Where that
was not done, it could properly be said that the dismissal was wrongful.

Summary Dismissal
Summary dismissal is provided under section 68 as where the employer
terminates the services of an employee without notice or with less notice
than that to which the employee is entitled by any statutory provision or
contractual term7.

Section 68(3) provides justification of summary dismissal which

stipulates that an employer is entitled to dismiss an employee summarily
when the employee has by his or her conduct indicated that he or she has
fundamentally broken his or her obligation arising under the contract of
service8.

In the case of Elatu vs. Uganda Airlines Corporation,Manyindo J, as he

was held that summary dismissal is dismissal without notice 9. At common
law, to justify such dismissal the breach of duty must be serious one, a
breach amounting in effect to a repudiation by the servant of his
obligation under the contract of employment such as disobedience of
lawful orders, misconduct, drunkardness, immorality, assaulting fellow
workers, incompetence and neglect. In summary dismissal the employer
gives no notice but in termination he must give notice or pay in lieu of
notice.

The holding in the above case was cited with approval by Tsekooko, JSC in
Barclays Bank of Uganda Ltd vs. Godfrey Mubiru , where the
learned judge stated; ‘...I understand dismissal without notice or summary
dismissal to mean that the respondent could be dismissed without being
heard if he breached the contract conditions, or if he was found guilty of
unsatisfactory conduct...’’ 10

6
[1975] HCB 191
7
Employment Act Cap 226
8
Employment Act Cap 226
9
[1984] HCB 39
10
SCCA No. 1 of 1998
In Summary dismissal court is required to investigate whether the
circumstances of the alleged misconduct justified a Summary Dismissal.
Barclays Bank of Uganda Ltd vs. Godfrey Mubiru (supra) Tsekoko
JSC referred to Chitty on Contract 26th Ed Vol 2 at
824 Para 3973 where under the heading MISCONDUCT the book states; -
‘Where the employee is guilty of sufficient misconduct in his capacity as
an employee, he may be dismissed summarily without notice and before
the expiration of a fixed period of employment.’’
The learned judge also quoted the Oxford Dictionary 1994 Ed, which
defines misconduct to mean: - ‘Bad, improper or unprofessional’.
Then the judge went on to hold that, ‘I am satisfied that ...the Respondent
was liable to summary dismissal if the appellant established
unsatisfactory conduct which to me is the same thing as misconduct.’
In Elatu vs. Uganda Airlines Corporation it was held that whether
mere negligence is sufficient to justify dismissal is a question of fact and
degree.

The test of summary dismissal was stated in Laws vs London Chronicle

Ltd ‘Whether the conduct complained of is such as to show the servant
to have disregarded the essential conditions of the contract of service’ 11

In the case of Mukasa vs. UCB , a branch manager had signed vouchers
and got paid. He never debited the money on his account. He kept the
vouchers in his till, and when this was discovered, he paid the money. The
court held that where an employee illicitly takes money behind the back
of his employer and appropriates it for his own use, even temporarily, this
establishes dishonest conduct which undermines the high degree of trust
and responsibility expected of a banking official and contravened the
terms under which he was engaged, that this justifies summary dismissal.
12

Wrongful Dismissal .
Dismissal is wrongful in cases where an employee hasn’t committed a
breach of contract and he is dismissed without notice or with insufficient
notice or no payment in lieu of notice. For instance, where an employee
serving under a fixed term contract which doesn’t specifically provide
termination by notice is terminated, the employee may be said to be
wrongfully dismissed because such an employee can only be dismissed
for a fundamental breach of the employment term.
11
[1959] 1 WLR 698

12
[1994] 1 KALR 104
This was further discussed in the case of Mc Govern v. Maize
Marketing Board , the contract provided that the employee was to work
for an initial minimum period of three months after which any subsequent
period may be terminated by one month’s notice. The employer served a
notice of termination of the employee after only two months of service. It
was held that the contract could not be terminated by notice during the
first three months. Consequently, the notice of termination was invalid
and the termination was wrongful. 13
REPUDIATORY BREACH
Another instance is where the employer has not exercised his or her right
to rescind the contract on the occurrence of a repudiatory breach and with
full knowledge of the breach, he/she loses the right to summarily dismiss
the employee for the particular breach and subsequent dismissal will be
unlawful.
DISCIPLINARY PROCEEDINGS.
These are provided for under Rule 2 under the Disciplinary code 14

Another instance is where the employment contract provides disciplinary

proceeding to be followed in the case of breach of contract before an
employee can be dismissed.

A failure to comply with these procedures will amount to wrongful

termination.
In the case of Elatu vs. Uganda Airlines Corporation Manyindo J, as he
was held that by considering the absence of sufficient cause, failure to
follow the disciplinary procedure set out for the dismissal of an officer of
the council and the failure to give the plaintiff adequate notice, the
termination of the plaintiff’s services was wrongful for which he was
entitled to damages15.

Further in the case of Tommy Otto vs. Uganda Wildlife Authority ,

Elatu’s
case was cited with approval and Justice Lameck Mukasa held that the
plaintiff’s summary dismissal by the management committee instead of
the authorized board of trustee under the provisions of the Terms and
Conditions of service of Senior Officers was unlawful for not following
proper procedures16.

13
[1968] EA 40
14
Schedule 1of Employment Act Cap 226
15
[1984] HCB 39
16
HCT CS 208/2002
REMEDIES FOR WRONGFUL DISMISSAL.
These remedies are appreciated under section 70(5) of the
Employment Act Cap 226

The remedy provided for under common law and the Act is an award of
damages.
• The measure of damages normally adheres to the principles in
Hadley v Baxendale [1843-1860] ALL ER 461 that in the case of
breach of contract,

•Damages should be such as may fairly and reasonably be

considered either arising naturally or such as may be reasonably
supposed to have been in the contemplation of both parties at the
time of making contract as the probable result of the breach of it.
COMPENSATION .
This is seen under section 70(5)b of the employment Act Cap 226
where court may order the employer to pay compensation to the
employee if it confirms unfair / wrongful dismissal
• In the case of Bank of Uganda vs. Betty Tinkamanyire SCCA
No.12/2007 Kanyeihamba JSC held that court will confine the
compensation for unlawful dismissal of the appellant to the
monetary value of the period that was necessary to give proper
notice of termination which is commonly known in law as
compensation in lieu of notice. That the contention that an
employee whose contract of employment is terminated prematurely
or illegally should be compensated for the remainder of the years or
period when they would have retired is unattainable in law. That
similarly claims of holidays, leave, lunch allowances and the like
which unlawfully the dismissed employee would have enjoyed had
the dismissal not occurred are merely speculative and cannot be
justified in law. Secondly that the acts of the appellant were not only
unlawful, but were degrading and callous (insensitive) and that a
good case shown for the respondent to be eligible for the award of
aggravated damages. That the respondent was only four years from
date of retiring with full pension rights. That the evidence shows
that she would have continued to serve the appellant faithfully,
diligently and in an exemplary manner. Consequently the court
awarded the respondent aggravated damages in the sum of
UGANDA Shillings 100,000,000 (One hundred million), and
respondent be paid her accrued pension and other terminal benefits.
REINSTATEMENT.
This seen under section 70(5) a ,which postulates that where court finds
out that a dismissal is unfair, the court may order the employer to
reinstate the employee,
As regards the remedy of reinstatement, in most cases a dismissal of an
employee is the end of a strained relationship between employer and his
employee or boss. It is therefore fundamental that before court can
exercise its discretion to make an order of reinstatement on a finding of
unlawful dismissal, it considers whether it is practicable for the employer
to comply with the order.
The industrial Court has a prime duty of protecting the rights of workers.
• Its view on re-instatement was clearly stated in ATGWU vs. UTC
Ltd (I.C.C. No. 19 of 1971) where the respondent, UTC was found
to have wrongfully dismissed two employees. The court observed,
‘As regards re-instatement, this court has stated time and again that
it cannot order re-instatement of any employee of any company
even if he may be wrongfully terminated. The only alternative
remedy in such circumstances is to order payment of compensation.

• In Jabi vs. Mbale Municipal Court [1975] HCB 190 the learned
judge held that where the dismissal was wrongful by whatever
reason, the appropriate reparation for such dismissal was
compensation and not reinstatement on the job for an employer had
unfettered right to dispense with the services of an employee.

• In Betty Tinkamanyire & BOU case, the Supreme Court stated

that it is trite that, a court of law should not use its powers to force
an employer to retake an employee it no longer wishes to continue
to engage.

REFRERENCES.
THE EMPLOYEMENT ACT CAP 226