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Group 4
Group 4
LABOUR LAW 1
QUESTION:
With the aid of decided authorities distinguish between unfair termination and
summary dismissal or termination in Uganda?
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Introduction
A contract of employment establishes a relationship between the Employer and
Employee. Section 21 defines a contract of service as any contract whether oral
or written, whether implied or expressed, where a person agrees in return for
remuneration, to work for an employer and includes a contract of
apprenticeship.
Termination of Employment
As already exposed termination simply refers to coming to an end of a contract
and in the case at hand contract of service.
Termination by employer
An employer has power to legally terminate the contract of employment,
following the principle of he who has power to appoint has power to disappoint.
The following are circumstances where an employer can terminate a contract of
service;
Termination by notice
1
Employment Act 6 2006
2
Section 4
3
ibid
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Considering section 65(1) (a)4 a contract of service can be ended by the
employer with notice. This is done when an employer serves a notice to the
employee for termination with reason for termination. A notice may take the
form of a redundancy notice or retrenchment notice.
A notice may also be served to an employee terminating his services for poor
performance, gross misconduct among other reasons which are all attributed the
employee's fault. This is fortified in Section 66(1) 6 which provides that an
employee should be informed about the reason for his dismissal in a language
he understands. Courts of law have also emphasized the need for a notice which
provides reason for dismissal for example in the case of Nassanga vs Stanbic
bank7.
It’s important that an employer has to comply with the statutory notice period as
provided under Section 58 (3)8 least the termination is regarded null and void if
challenged in the courts of law.
Expiry of contract
A contract of service can be terminated by the expiry of contract where it’s for a
specific term or period. Another case is where the contract is for performance of
4
ibid
5
Employment and Industrial Relation Law in Uganda pg371
6
Employment Act 2006
7
LDC 227/2014
8
ibid
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a specific task and the task in question has been concluded for example
conducting research and the research has been submitted.
It’s important to note that upon such expiry the contract will be considered
terminated after one week from the day of expiry as per section 65 (1) (b)9.
Termination by employee
An employee is also at liberty to terminate a contract of service, the contract of
service isn’t a prison that an employee has to keep in until a specified time. In
the following circumstances as provided for by the Employment Act an
employee can bring to an end the employer-employee relationship;
9
ibid
10
Employment Act 2006
11
LDC No.108/2014
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2. Termination before the expiry of the notice term
An employee who has received a notice terminating his/her employment
contract that is in accordance with Section 58 12, can terminate his contract
before the expiration of the notice as per Section 65 (1) (d)13. The employee is at
liberty to leave even if he/she doesn’t after the expiration of the period in the
notice he is bound to do so, therefore in case he/she spots another opportunity it
would be to his/her advantage to leave before the expiration of notice period.
Furthermore, the Act creates a statutory limitation period of three months within
which to file a complaint as per section 75(2) 15, this section is also of paramount
importance in that it also provides jurisdiction of labour officer, which is the
court of first instance in regard to labour disputes.
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ii. Termination without reason
According to Section 68 (1)19, an employer should provide a reason for
termination failure to do so will be tantamount to unfair termination as provided
in Section 71.
19
Employment Act 2006
20
LDC No.138 of 2014
21
Constitution Of Republic 199
22
Employment Act 2006
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employee regards his/her reason for dismissal, hence according the employee
fair hearing.
23
ibid
24
Ibid
25
ibid
26
Page 342
27
[2105] eKLR
28
C.A No. 2 OF 2010
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earning his remuneration. His sole money claim is for damages and he must do
everything he reasonably can to mitigate them. …”
Severance pay
Section 87(a) of the Employment Act, entitles an employee who has been in an
employer’s continuous service for a period of 6 months but is unlawfully
dismissed to severance pay. Section 89 of the Act provides that severance
allowance should be negotiable between the employer and employee. However,
where it has not been negotiated and there is no provision for a method to
calculate it, court in Donna Kamuli vs DFCU Bank29, held that the reasonable
method shall be payment of 1 month’s salary for every year the employee has
served.
Summary dismissal
Summary dismissal is provided for under section 69 (1) 30 to be where an
employer ends the services of an employee without notice or with less notice
period. The same section under subsection 3 provides the circumstance for
summary dismissal to be where an employee fundamentally broke his or her
obligations arising under contract of service.
29
LDC 002 OF 2015
30
Employment Act 2006
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Shell Ltd Vs George Ndyabawe31 court held that an employer may dismiss the
employee summarily if by his or her conduct the employee repudiates the terms
of contract of employment or is in fundamental breach of the contract.
Conclusion
The position of the law on unlawful and/or unfair dismissal was stated in the
case of Bank of Uganda Vs Betty Tinkamanyire33. 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. However, depending on the circumstances,
an employee who is unfairly or unlawfully dismissed, as in this case, should be
compensated adequately in accordance with the law.
List of references
Constitution of the Republic Of Uganda 1995
31
[2006]HCB
32
[1959] 1 WLR 698
33
SCCA No 12 of 2007
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Employment Act 2006
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