Court upholds lecturer’s dismissal over double employment
The court held that an employee cannot serve two institutions on a full-time basis where the employment contract expressly requires exclusive devotion to one employer.
Court upholds lecturer’s dismissal over double employment
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The Industrial Court has upheld the dismissal of a senior lecturer at Cavendish University Uganda for holding two full-time jobs at the same time, ruling that dual employment breached his contractual duty of fidelity and good faith.
The court held that an employee cannot serve two institutions on a full-time basis where the employment contract expressly requires exclusive devotion to one employer.
Justice Anthony Wabwire Musana, sitting with panellists Can Amos Lapenga, Emmanuel Bigirimana and Dr Dawn Oling Kerjew, dismissed a claim by Dr Fredrick Kiwuwa Lugya, who had sued Cavendish University challenging his dismissal.
The court found that the university was justified in summarily dismissing Kiwuwa after he continued working as a full-time employee of Makerere University while serving under a contract with Cavendish that prohibited him from taking up other full-time employment.
The court held that Kiwuwa’s conduct amounted to a fundamental breach of his employment contract and the common-law duties of fidelity and good faith.
Kiwuwa had sought a declaration that his dismissal was wrongful, unjustified and unlawful, arguing that he had been denied a fair hearing.
He also challenged a clause in his employment contract prohibiting him from engaging in other full-time employment, arguing that it amounted to an unreasonable restraint on his right to work.
The lecturer further claimed that he had been assigned additional duties under the university’s Electronic Distance Learning (eDL) project but was not paid extra for the work.
He sought severance allowance, unpaid wages, compensation for the unexpired portion of his contract, general and punitive damages, interest and costs.
However, Cavendish University argued that Kiwuwa had fundamentally breached his contract by maintaining full-time employment at Makerere University while employed by Cavendish on a full-time basis.
The university told court that Kiwuwa had submitted a curriculum vitae in 2014 indicating that he had ceased working at Makerere University in 2012, yet investigations later established that he remained a full-time employee of the university.
The university further argued that Kiwuwa was aware of the contractual restriction because he had signed the employment contract containing the clause prohibiting full-time employment elsewhere.
The court also considered Kiwuwa’s argument that the university was aware of his employment at Makerere University and that he had continued to meet his performance targets.
However, Justice Musana rejected the argument, holding that the university’s alleged knowledge of his other employment did not make his conduct lawful after he had expressly agreed to an exclusivity clause.
The judge said Kiwuwa had knowingly signed a contract requiring him to devote his time to Cavendish University and prohibiting him from taking up another full-time job.
The court noted that the Employment Act does not expressly regulate dual employment or “moonlighting”, but said the common-law duties of fidelity and good faith require employees to act with loyalty, honesty and transparency towards their employers.
Justice Musana said these duties include exclusive devotion to the employer during contracted working hours, transparency about other employment, non-competition and protection of the trust between an employer and employee.
The court relied on authorities from Uganda and other jurisdictions, including a South African case involving a lecturer who secretly held two full-time jobs, where the court held that such conduct amounted to gross misconduct justifying dismissal.
The court also rejected Kiwuwa’s argument that his dual employment was acceptable because he had fulfilled his duties and key performance indicators at Cavendish.
Justice Musana said it was not for an employee to unilaterally determine whether holding a second full-time job disadvantaged an employer.
The court observed that a full-time employee was expected to devote the contracted time and attention to the employer and that serving two institutions on a full-time basis created an inherent conflict in terms of time and commitment.
The court further noted that the contract between Kiwuwa and Cavendish provided for a 48-hour working week, making it impossible for him to devote himself fully to both institutions.
“An employee cannot act in good faith while drawing two full-time salaries, as serving two institutions concurrently creates an inherent, humanly impossible conflict of time and devotion,” Justice Musana held.
The court also dismissed Kiwuwa’s argument that the restriction on dual employment amounted to an unreasonable restraint of trade.
The judge distinguished between restrictions imposed after employment and the duty of an employee not to compete or breach the duty of fidelity while still employed.
Justice Musana said that exception did not apply to Kiwuwa because his case involved two full-time positions and not professional or part-time engagements that could be undertaken without interfering with his primary employment.
The court also rejected Kiwuwa’s claim that he had been discriminated against because other academic staff allegedly held full-time jobs elsewhere.
The judge said Kiwuwa had failed to prove that his dismissal was based on any protected ground, such as race, sex, religion, political opinion, national extraction, social origin, HIV status or disability.
On the question of procedural fairness, Kiwuwa had argued that the disciplinary committee that heard his case was improperly constituted because it did not include the university’s Deputy Vice-Chancellor and legal officer as required under the Human Resource Manual.
The court, however, found that the university’s Executive Director had the authority to constitute the committee on a case-by-case basis because the positions of Deputy Vice-Chancellor and legal officer were vacant at the time.
The court held that the disciplinary committee, which included the Human Resource Director, the Dean of the Faculty of Law and a representative from Kiwuwa’s faculty, was properly constituted.
The court further found that Kiwuwa had been given an opportunity to respond to the allegations against him through a notice to show cause, suspension and a disciplinary hearing.
The court consequently found that both the procedure followed by Cavendish and the reason for Kiwuwa’s dismissal were fair and lawful.
On his claim for unpaid wages arising from the Electronic Distance Learning project, the court found that Kiwuwa had failed to establish an entitlement to additional payment.
The court noted that his employment contract provided that his salary covered his contractual duties and any other tasks undertaken during his employment unless additional remuneration had been formally authorised in writing.
The court therefore dismissed the claim for additional payment.
Justice Musana concluded that because Kiwuwa’s dismissal was both procedurally and substantively fair, he was not entitled to compensation, reinstatement, re-engagement, severance pay or damages.
The court dismissed the claim in its entirety and ordered each party to bear its own costs.