Fired without reason: Where is your defence?

You are looking for fees to return your children to school after nearly a year during the lockdown.

You have just acquired a loan to fund your Masters’ degree, as you position yourself for a promotion. Meanwhile, your expectant wife is nearing her due date and her births are usually by C-section.

Your landlord is impatiently waiting for you to clear the rent arrears. But suddenly, your boss tells you “you are fired.” Or restructured. Or terminated. Or dismissed. Whatever the terminology, the common meaning is that “you are now jobless.” Just like that.

Harsh law
Sad. But not against the law, according to a recent ruling by the Court Of Appeal. On Monday, the Court Of Appeal reasserted the right of an employer to terminate an employment relationship without a reason by either giving the employee notice or paying in lieu of notice.

The initial case involved five former employees of Bank of Uganda challenging their termination in 2010. The Industrial Court ruled that in all cases of termination and dismissal, the employer must give the employee reasons for the decision.

That ruling reflects the one by the same court in Labour Claim No. 138 of 2014, in which Florence Mufumba challenged Uganda Development Bank for ending her employment, without reason.

But in 2016 Bank of Uganda appealed the ruling via MMAKS Advocates, and according to a document on the legal firm’s website, the Court of Appeal found the demand for a reason for termination unnecessary.

It ruled that “there is no requirement for a reason to be given by an employer for termination of services of an employee provided that the requisite notice is given or payment in lieu of notice made,” the document on the firm’s website partly reads.

The court stated that several Supreme Court decisions including Barclays Bank vs Godfrey Mubiru, SCCA No. 1 of 1998, still reflect the correct position of the law on the matter, regardless of the promulgation of the Employment Act, 2006. It also ruled that the aforementioned Industrial Court decision in the Florence Mufumba vs Uganda Development Bank case was wrong.

Meanwhile, Article 4 of the International Labour Organisation Convention 158 of 1982, maintains that employment of a worker shall not be terminated “unless there is a valid reason for such termination” connected with the capacity or conduct of the worker or based on the operational requirments of the undertaking, establishment or service.

The appellate court added that while the Industrial Court’s decision may have been influenced by the international law to which Uganda is signatory it would be erroneous as no such provision was enacted in the Employment Act, yet Parliament drew important principles from the Convention, while drafting the Act.

Employee protection
So where does this leave the employee? What is their remaining line of defence?
Sulaiman Kakaire, one of the human rights lawyers handling several labour complaints, says the Court of Appeal ruling is unfortunate “because it negates the Industrial Court’s inroads in giving a human face to our labour laws.”

Kakaire hence vowed to strongly challenge the ruling and assert the Industrial Court’s position against the Court of Appeal’s application of the principles.

“The ruling will not shatter the hopes of those seeking justice in labour matters. We are going to have a serious discourse between the Bar and the Bench for a more plausible and fair position,” he said in a phone interview.

Kakaire argues that the ruling not only contravenes various sections of the Employment Act, 2006 but also Article 28 of the Constitution of Uganda, which gives a person the right to a fair, speedy and public hearing in matters civil or criminal before an independent and impartial court or tribunal established by law.

Section 66 of the Employment Act, for instance, demands that before reaching a decision to dismiss an employee, on the grounds of misconduct or poor performance, an employer must explain to the employee, in a language the employee may be reasonably expected to understand, the reason 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.

Dangerous precedent
Grace Nabakooza, head of employment relations and legal services at Federation of Uganda Employers, says the new ruling gives the employer liberty to terminate a working relationship but it must follow Section 65 of the Employment Act.

“But we need to apply it carefully and objectively because some circumstances may require an employer to give reasons for termination,” Nabakoza says.

Kakaire adds that the appellate court also neglected the essence of Sections 73 and 75 of the Employment Act which explain what constitutes “unfair termination.”

The sections deem the termination unfair if it is based on, say; a female employee’s being pregnant, an employee’s race, colour, sex, religion, political opinion or affiliation, national extraction, nationality, social origin; marital status, HIV status or disability; an employee’s participation or proposed participation in labour union activities outside working hours or, with the consent of the employer, within working hours, initiation or proposed initiation of a complaint or other legal proceedings against his or her employer, among others.

The moral in all these provisions, Kakaire insists, is need for an engagement involving the employer, the employee, and a labour officer or representative to establish whether the reason for termination was based on justice and equity.

“We are handling several employment matters and we shall put the Court of Appeal to task to explain why it overlooked the context of the principle demanding employers to give reasons for termination,” Kakaire says.

Wilson Owere, chairman of National Organisation of Trade Unions (Notu), also called the ruling unconstitutional.
“We are going to challenge it in the Supreme Court, and if we are not satisfied we can also seek arbitration from the international court,” he says.

Owere also highlighted that most judges are not well-versed in industrial relation matters.
“Very few judges have mastered issues of workers. We need to create more awareness among them on the uniqueness of these matters,” Owere says.