INDUSTRIAL COURT DEFINES WHAT AMOUNTS TO A FAIR HEARING IN EMPLOYMENT DISCIPLINARY PROCEEDINGS.
- September 14, 2020
- Posted by: Joseph Okuja
- Category: Alerts & Insights
The Industrial Court in Kampala, in the case of Grace T. Makoko -vs- Standard Chartered Bank (U) Labour Dispute Reference No. 315 of 2015, has defined what amounts to a fair hearing in employment disciplinary proceedings. The Court reaffirmed the non-derogable status of this right.
In that case, the employee’s contract was terminated without a hearing and before a formal assessment of the disciplinary issue. However, her termination was preceded by discussions between her and her line manager but no formal disciplinary hearing was conducted as per the Bank’s Human resource policy. The Claimant alleged she was forced to undertake a performance improvement plan.
In its decision, the Industrial Court noted that an administrative procedure such as a disciplinary hearing need not conform strictly to the standards of a Court of Law. Employers need only apply the minimum standards of natural justice as per Article 28 of the Ugandan Constitution. Accordingly,
- A fair hearing according to Sections 66 and 68 of the Employment Act means explaining to the employee the reason for termination, giving him/her an opportunity to respond to the reason, within a reasonable time, and the reason must be a justifiable reason.
- The absence of a formal disciplinary process in which reasons are explained and an opportunity to respond to the allegations is given before termination, mean that the minimum standards of a fair hearing are not met.
- Merely stating the reasons for termination in a letter of termination, without providing proof of the reasons is not sufficient to warrant the termination. Proof must be adduced.
- The employer is not expected to prove this beyond reasonable doubt, but he/she must show that it existed at the time of termination, and it was a justifiable reason to warrant dismissal.
- Mere discussions between the employee with his or her supervisor about the employee’s performance does not suffice as a fair hearing. Court ruled that the discussion should have escalated into a formal disciplinary process in accordance with Sections 66 and 68 of the Employment Act before termination.
- Where Court establishes that the trust and confidence between the employer and employee still exists, or that the duration between the termination and the resolution of the dispute between the Parties is recent, it may order for reinstatement of the employee.
- Given Grace Makoko’s caliber and high status as Head of Global Markets at Standard Chartered Bank, Court gave her an award of UGX 1,000,000,000 in general damages with an interest of 15% per annum granted from the date of the award. We note that whereas all employees are entitled to a fair hearing, employers should take extra care when terminating senior employees’ contracts (emphasis ours).
The above Court decision seemed to have moved away from its earlier decision in the case of *Donna Kamuli –vs- DFCU CA No. 121 of 2016 where in that case, e-mail correspondences amounted to a fair hearing. Court distinguished the circumstances in both cases and justified that the e-mail correspondences between Donna Kamuli and her supervisors amounted to a fair hearing because there was a Moderation Committee which was involved in re-assessing her performance. And in so doing, this Committee considered the representations she made regarding her performance before she was terminated. This, however, was not the case in Grace Makoko -vs- Standard Chartered Bank, where there was a mere interaction between the Grace and her supervisor.