Award of Damages for Unlawful Dismissal in Uganda; The Quest for Consistency after the Employment Act of 2006

Abstract

A person's employment is more often than not one of the most key things in his or her life. It gives not only a livelihood but an occupation, an identity and a sense of self-esteem. For many employees, dismissal is a disaster. For some, it may make inevitable the breaking up of a community and the uprooting of homes and families. For others, and particularly older employees, may be faced with the utmost obscurity in obtaining employment at all. Loss of one's job is always a distressing event; and it can be devastating when dismissal is accompanied by bad faith. In Uganda, the employment relations were governed by a common law regime and the Employment Act, Cap 219 until 2006 when a new labour law regime was ushered in. With the advent of this regime, a number of labour claims have been decided by the High Court with notable inconsistency in principle and on the amounts and later by the established Industrial Court. This article undertakes a jurisprudential analysis of the effect, if any, that the Employment Act, Act No. 6 of 2006 and its subsequent interpretation by courts has had on the recovery of damages for unlawful or wrongful dismissal. Academic recognition of the central role that the new Employment law regime has played in the labour relations is certainly not novel. However, no academic commentator has previously analysed the body of Ugandan unlawful dismissal cases purportedly applying the common law remedy of damages in causes of action for dismissal. In addressing this lacuna, this article provides a comprehensive investigation of the case law concerning award of damages since the inception of the 2006 labour law regime and draws on this to identify and then critically assess the effects the legislation has had on the court's view on award of damages for unlawful or unfair dismissal. In doing so, the article aims to answer the following central questions: are courts justified under statute or common law in awarding general, exemplary and aggravated damages in unlawful or unfair dismissal cases? Is it time to reconsider the Supreme Court decision in Bank of Uganda v Betty Tikamanyire and Omunyokol Akol Johnson v Attorney General? This inquiry is concerned solely with the determination of damages available to dismissed employees as against their former employers. The paper does not seek to scrutinise the issue of liability in these decided cases save for where the factual matrix would assist in understanding the basis court used to award particular remedies. This article is divided into five principal parts. Following this introduction Part I examines the status of unfair dismissal law in Uganda, Part II examines the precedential basis of the common law principles that have influenced Uganda’s unlawful dismissal law especially on the remedy of damages. It assesses how common law principles have developed over time and the current position. Emphasis is placed on the cases that have been quoted in the Ugandan courts. Part III analyses a number of the leading employment law cases in respect of the award of damages. It argues that there are inconsistencies in the Ugandan courts in respect to the assessment of damages in dismissal claims and most of the cases do not accurately represent the common law position, as a result, the jurisprudential value in those cases in respect of damages is greatly diluted. It also demonstrates that retention of the ratio decidendi in the Supreme Court decisions in Bank of Uganda v Betty Tinkamanyire supra and Omunyokol v Attorney General, supra, in respect of aggravated damages and general damages respectively undermines the doctrinal coherence of contract and employment law, by imposing on the parties an artificial interpretation of the employment contract that fails to recognise the social realities of modern employment. Part IV assesses the teething problems of the newly created Industrial Court as it applies cases that have been inconsistently decided in the appellate courts. Part V draws together the precedential and more fundamental doctrinal deficiencies in the award of damages. It lays down what should be the proper approach to the application of statutory remedies provided under the Employment Act, Act No. 6 of 2006. It also lays down the new direction for the dismissed employees. The article concludes that the re-examination by the Supreme Court on the issue of assessment of damages in unlawful dismissal cases is warranted and possibly Parliament intervention is needed.