By Anthony Wanyanma
INTRODUCTION
This presentation is comprised
of six parts. The first part is this
introduction, the second part brings
out the meaning of Common Law
and some of its Principles as alluded
to in the second part of the Bill, the
impact of these Principles on the
administration of Labour Justice in
Uganda and how the Employment
Act 6 of 2006 has mitigated that
impact in favor of employees. The
4th part points to arguments against
some of the proposed amendments
while the 5th part highlights the
general proposed amendments and
then lastly the conclusion. This Bill
has several Parts and Clauses but
I will restrict myself to only those
controversial Parts and Clauses in the
Bill.
2. COMMON LAW
Part 2 of the Bill in respect to defects
in the present Employment Act
provides inter alia that the present
Law is not aligned to the Common
Law Principals that govern the
Employer and Employee relations
as it creates more contradiction than
Clarity in the area of dismissal and
termination of Contract of Service.
Common Law is that branch of laws
derived from decided cases. It’s part
of English Law which Uganda is still
following, having been colonized
by the English. They are sometimes
referred to as Precedents. The framers
of the Employment Act 6 of 2006
looked at the draconian nature of some
of these Common Law Principles,
considered the weak bargaining
position of the employee as compared
to the Employer and enacted this law
as means of mitigating the effects
of Common Law in Employment
Contracts.
One can authoritatively state that
Employment Act 6 of 2006 was
meant to correct the harsh impacts
of the Principals of Common Law
in employment relations and any
amendment meant to reverse what
the Employment Act has corrected
is a bad law to employees to say the least.
To understand the impact of the
Principles of common law and
how the Current Employment Act
mitigated them in favor of employees,
I will consider some of the landmark
cases in which some of the Principles
of Common Law were laid down
and how they were mitigated by the
Employment Act. A discussion of
some of these Principles as laid down
in decided cases and how the Present
Employment Act mitigated them is as
hereunder;
Arguments against some of the proposed
amendments in the Bill
Part 4 clause 3 of the Bill, introduces
an amendment to section 13 of the Act
by repealing the words Arbitration
and Adjudication from the Act. This
amendment is intended to remove the
powers of adjudication from Labour
officers, leaving them with only
powers to conciliate and mediate
as provided for under section 93(2)
of the Act. I don’t agree with this.
The practice as it has been at the
Ministry of Gender, Labour and
Social Development is that a Labour
Officer Conciliates and Mediates on
Labour Complaints and when he/she
fails, the matter is referred to another
Labour Officer for Adjudication since
this Labour Officer cannot mediate
and also Adjudicate on the same
matter.
Clause 10 proposes amendment to
section 65 of the Act and introduces
grounds considered for dismissal of
an employee by the employer which
include,
Inability of the employee to
perform duties assigned to him/her
under the contract of employment.
I don’t agree with this provision
as it doesn’t disclose the cause of
that inability. The inability by the
employee to perform could be caused
by the employer himself by not
providing the tools for execution of
work or poor working conditions
by the employer. This could be
intended to victimize the employee
and employer will hide under this
to dismiss the employee basing on
any other personal grounds. This
provision should be removed from
the Bill.
On Redundancy of the employee
I have no issues with this provision
since the employer must prove it
under clause 10(2) of the bill and
Disobeying lawful orders should be
removed.
The nature of work done by the
employee is provided for in the Job Description and obligations in the Employment Contract. Which lawful orders are these again? This means that the employer wants to victimize the employee outside the scope of the employee’s agreed duties and this is not acceptable. The employer will hide under this provision to dismiss an employee on personal grounds and remember they are seeking to have the Common Law Principle of Hire and Fire of employees without reason back in the law.
Where the employer establishes that the employee presented forged documents or did not poses required documents at the time of recruitment. No issues with this. Only that the word proved must follow the word establishes to read “ where the employer establishes and proves” . Where the continuous employment of an employee may lead to breach of statutory obligations. In total disagreement and this must be removed because it’s speculative. Take for example it is a statutory obligation for an employer to pay tax. How can the continuous employment of an employee for example lead the employer not to pay taxes as statutory obligation or to observe environmental regulations under the Environment Law?. These issues are covered by different laws and shouldn’t be brought any nearer to employment issues as employers will hide under them to dismiss employees on personal grounds. The intention of having back the Common Law Principle of Hire and Fire of the employee without reason is again sighted here.
Where the conduct of the employee inside and outside the employment may have an adverse effect on the business of an employer. This should be removed as it’s subjective and may undermine other fundamental rights of the employee as an individual and yet the obligations of the parties are provided for under the terms of Contract of Employment.
5. General proposed amendments to the employment Act 6 of 2006
1. Section 66(6) and 70(1) of the Act provides for only six months within which to bring an action against unlawful dismissal and termination. I propose an amendment to these provisions for this period to be extended like in other Commercial Contracts to three or six years. It is indeed unfair to bar a dismissed employee, now without proper source of income to begin the process of litigation, from bringing an Employment based action after the elapse of only six months when other people can enforce their economic and commercial rights within 3 or 6 years.
2. Section 67(1) of the Act is to the effect that an employee who is on probation is not entitled to notice and hearing before termination. This is discriminatory since a worker on probation has the same Constitutional Rights as Permanent worker and this section offends section 71(1) of the Act and must be removed. Similarly section 71(3) which bars an employee who is terminated under probationary contract to bring an action against the employer for unlawful dismissal should be removed for being discriminatory and contradicting section 71(1). Probationary contracts also have their own terms and rights that accrue to the parities which if breached, an action must arise.
3. Section 67(2) puts the maximum length of probationary period to six months. If this is the maximum period then why give an extension of another six months? The practical issue here is that employers with targets in their businesses have abused this provision by employing workers under probationary contracts, extended them for another six months, thus making a full year and only to terminate them under probationary contracts after them, employers achieving their targets and moreover section 71(3) bars probationary employees from bringing an action against an employer. This is exploitation should not be acceptable. Accordingly the extension should be removed and maximum period of probation left to only six months. 4. Section 93 (2) should be removed as it limits the jurisdiction of Labour Officer to only conciliation and mediation hence contradicting section 13(1). Remember the Labour Officer is empowered under section 77, 78 and section 93(3, 4&5) to give awards and make compensatory orders. He cannot execute this mandate without being dressed with the jurisdiction of adjudication and moreover an appeal against the decision of the labour officer lies to the Industrial Court under section 94 of the Act. 5. Section 93(6) is to the effect that the Labour officer does not have jurisdiction to handle tort matters arising out employment contracts and that they should be referred to court without certainty as to which court. Is it the industrial Court or these other Courts of Judicature? I have gone through these Labour laws and for this matter the Employment Act, I have not seen any definition of “COURT” in this particular aspect and context. The definition must state COURT either to mean the Industrial Court as established by section 7 of the Labour Disputes (Arbitration and Settlement) Act as amended and specialized in adjudication of labour matters or these other Courts of Record Established by the Constitution or those Magistrates Courts Established by the Magistrate Court Act and other laws.
6.CONCLUSION
It’s evident that most critical clauses in this Bill have been masterminded by the Employers to bring back what the Employment Act 6 of 2006 has cured and such amendments should be disregarded. However the Bill has provided some of us the opportunity to have an input in causing amendments to some parts of the Employment Act 2006 which have been causing practical issues in the administration Labour Justice■
Counsel Anthony Wanyama A lawyer, former Panelist of the Industrial Court of Uganda, General Secretary of Uganda Artisans and General Workers Union and Acting Secretary General of Central Organization of Free Trade Unions (COFTU)
