How to handle Unlawful Dismissal
Employment is the backbone of our social structure and the end game of the education system. It has permeated its place in the society as a bedrock of survival and a catalyst for human development
This conundrum arose mainly as a result of the birth of monetised economies fuelled by capitalists’ desires to make more profits at the expense of human labour (save for recent instances of mechanised labour markets).
Even in the late 1970s when BBA was introduced in our education system, it aimed at creating money-managers instead of money-makers. This meant that young men and women would have to undergo training on how to manage someone’s money in the form of employment instead of training them how to be entrepreneurs and money makers. This problem has spread across other courses taught in schools and other institutions of learning creating a slave society of pay checks as remuneration for the services offered.
It is against that backdrop that I found it pertinent to write about the process of dismissal from employment which in most cases is a humiliating encounter. The way in which both the employer and employee handle their ‘divorce’ is important to their future relationship and reputation.
STAGES OF UNLAWFUL DISMISSAL.
When the employer-employee relationship goes sour, both parties will be alive to that fact. What remains in abeyance is how the parties can part ways in peace and without causing financial distress, and putting their reputations into disrepute. This would directly or indirectly affect the company market and operations as well as employee’s employability rates elsewhere.
However, the above may not always be true for some entities or individuals since they just dismiss summarily under the old common law adage that he who has the power to hire, has the power to fire.
Below I discuss the stages of wrongful dismissal briefly explaining how the employee should handle each stage when that time comes as well as the worth of a labour lawsuit claim in respect of the same.
I must stress the fact that in most cases that time is as hard as losing a loved one and what the employee should look out for is a supporting family and friends so that they can go through this rather daunting economic and psychological suffering.
1. DISMISSAL PROCESS
It should be understood at this stage that employment is a mere contract between the employer and the employee. This
means that recourse will be made to the terms of this contract and the company policy manual at the time of dismissal.
However, Employment Act, 2006, which is emphatic about this process should guide the parties while exercising their powers especially the employer while making an administrative decision to dismiss the employee for whatever reason.
Section 2 of the Employment Act draws a distinction between dismissal and termination from employment. 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 whereas termination of employment means the discharge of an
employee from employment at the initiative of an employer for justifiable reasons other than misconduct, such as, expiry of contract, attainment of retirement age, etc.
Dismissing an employee is a process which if not properly followed can lead to compensatory and other claims from the
employee who has been dismissed.
This process starts with allegations of certain misconduct committed by the employee which will require investigations by the employer and the employee may be tasked to make statements of what transpired or to physically appear before a disciplinary hearing where the rights of employee must be well elaborated to him or her.
The disciplinary committee thereafter prepares a report with minutes and reasons of dismissing the employee, if that be the decision. Though many organizations have a right of appeal within the organization structures which may vary the
decision.
Article 42 of the Constitution of the Republic of Uganda, 1995, states that any person appearing before any administrative official or body has a right to be treated justly and fairly and has a right to apply to courts of law in respect of that decision.
This constitutional provision is buttressed by section 66 of the Employment Act that requires an employer, before reaching a decision to dismiss an employee, on grounds of misconduct or poor performance, to explain to the employee in the language the employee may reasonably be expected to understand, the reason for which the employer is considering dismissal and the employee is entitled to have another person of his choice
present during the explanation.
In that regard, an employer shall before making a decision to dismiss an employee, hear and consider the employee or any person he or she chooses to represent him or her, for instance a lawyer, who shall be accorded enough time to prepare the presentation.
An employer who fails to comply with this procedure, irrespective of whether the employee is guilty or not, is liable
to pay the employee a sum equivalent to four weeks’ net pay (the section states four weeks’ net pay, but court can award more especially for employees paid on monthly basis).
Also remember that when you quit the employment before they dismiss you, it is highly unlikely that you will get some of the benefits or remedies.
2. HIRING A LAWYER .
Once the employer has confirmed your dismissal from employment, the next step is to get a lawyer that has time to
handle your case.
Wrongful dismissal cases can take quite some time and resources before they are concluded, unless a settlement is
reached especially where the employer is not willing to cooperate.
Section 66(5) of the Employment Act gives the employee who has been dismissed locus to lodge a complaint to the labour officer alleging failure on the part of the employer to comply with the laid down procedure of dismissal. This complaint may as well be joined with any other complaint alleging unjustified summary dismissal or unfair dismissal.
The labour officer has power to order for the payment of the four weeks’ net pay provide by the Act as well as make any
other order in respect of any other award or decision reached by the employer.
3. FACT FINDING
Once a law firm has been hired, it will undertake extensive fact finding by going through the story verbally with a client
several times and take notes. It is also prudent practice for the lawyer to ask a client to write a timeline of events.
It is prudent and advisable that employees always keep copies of necessary documents, messages, emails and any other relevant information from the start of their employment in order to avoid applications for discovery which do not guarantee that all documents requested will be availed to you by the employer as well as saving time within which to conclude the case.
4. DEMAND LETTER.
In an attempt to bring to the attention of the employer your claim for wrongful dismissal, a demand letter will be sent to
the employer containing all your claims.
This arises after having identified legal claims in the dismissal process and offer to settle the matter by negotiating with the employer.
Section 80 of the Employment Act allows parties to, in writing, waive the option of lodging a complaint to the labour officer and instead settle the labour dispute themselves.
However, the employee should not hasten to accept the employer’s meagre offer if they have a good case, they can get a lot of money in compensation. But the decision whether to settle or not to settle should be assessed on the merits of the case because sometimes it is better to settle at the earliest than later.
5. FILING A LABOUR COMPLAINT
In case parties fail to reach any settlement then a labour complaint can be filed to the labour officer to decide the
matter.
Section 13 of the Employment Act, gives the labour officer power to investigate and dispose of complaints arising from
labour disputes.
Section 93(2) of the Act gives the labour officer jurisdiction to hear and settle labour disputes by way of conciliation or
mediation. Where within Ninety days the labour officer has not issued a decision or dismissed the complaint, the complainant may pursue the claim in the industrial court.
Section 94(1) states that any party aggrieved by the decision of the labour officer may appeal to the Industrial court which must be on question of law and with leave of the industrial court. At this point court will make judgment according to the merits of the case and how well the lawyers have presented your case.
However, subsection 6 limits the time within which to lodge the complaint to the labour officer to three months after the date of the dismissal. Further, section 70 (1) of the Act provides for a complaint to the labour officer in case of summary dismissal by the employee to be lodged within six months from the date of the summary dismissal. Timelines in section 6 apply to dismissal while section 70(1) applies to summary dismissal both of which are unlawful.
HOW MUCH ARE UNLAWFUL DISMISSAL LAWSUITS WORTH?
In order to determine how much your wrongful dismissal lawsuit is worth, recourse will be made to the following factors
which apply from case to case basis. These can also be considered as remedies sought by the employee who has been
dismissed from employment.
i. Lost Wages.
The Employment Act already provides for the four weeks’ net pay to the employee who has been dismissed. This can also be raised in the labour complaint if it has not been paid at the time of the dismissal. Courts can make an award of more than four weeks’ wages especially where the employee has been paid on monthly basis.
ii. Damages.
Damages in these matters can be general and/or specific depending on the legal claims and the circumstances of each case. In rare circumstances court also grants punitive damages especially if the process of dismissal was marred by malice and oppression.
For instance, court stated in the case of Dr. Omona Kizito versus Marie Stopes Uganda, Labour Dispute Claim. No. 033/2015, that the impression we get is that damages are assessed by the court depending on the circumstances of a
given case and in the discretion of the court. As a result of the courts disapproval of the manner of dismissal of the employees, courts have generally granted general damages. Court went ahead to grant thirty-two million shillings to the claimant as general damages.
These damages are generally assessed according to pain and suffering of the employee which include emotional and a liturgy of psychological suffering at the workplace; professional treatment by the employer; change of behaviour of the employee as a result of unprofessional treatment by the employer which can be proved by medical bills of emotional distress at the time approaching and during the dismissal.
iii. Severance allowance.
Section 87(1) of the Employment Act states that employer shall pay severance allowance to an employee who has been in continuous service of the employer for a period of six months or more where any of the situations including where the employee is unfairly dismissed by the employer. However, section 88(2) of the same Act disqualifies the above
section by stating circumstances where an employee who has been summarily dismissed is not entitled to severance
allowance, to wit; summary dismissal with justification, where the employee refuses to accept the offer of re-employment, or where the employee abandons his work or absconds from work for more than three days without any justification.
However, section 88(2) of the same Act disqualifies the above section by stating circumstances where an employee who has been summarily dismissed is not entitled to severance allowance, to wit; summary dismissal with justification, where
the employee refuses to accept the offer of re-employment, or where the employee abandons his work or absconds from work for more than three days without any justification.
The other grounds where severance allowance is not paid is when the employer dies; where the business is a partnership or when the contract is a probationary contract.
In the case of Dr. Omona Kizito cited above, court held that the claimant was entitled to severance pay at 1 week’s pay for every year of service as per the Human Resource Manual.
iv. Intangibles.
Intangibles simply mean other important factors that are considered in making awards in labour claims. These include
client honesty; media coverage; good lawyer; and defendant temperaments among others. Once all these and indeed any other factors have been considered, then the claimant/employee can calculate and estimate how much their
wrongful dismissal case is worth.
In conclusion, unlawful dismissal happens almost on a daily basis and with this information employees can make valid
claims against unscrupulous employers.
My idea of employment is for all employees to go to work every day and work under favourable conditions without the fear of dismissal at the employer’s wish.
After all this is what the law provides- a safe and peaceful relationship between the employer and employee, during employment and at the time of the dismissal.
Bright Natumanya is a commercial law practitioner at M/s Tibugwisa and Co. Advocates. For comments and inquiries contact him at bright@tibugwisaadvocates.com or +256775788115.
Advocate of the High Court currently working with TARA Advocates
