Kabira Country Club ordered to pay ex-worker sh9.42m for unfair dismissal
Court heard that Elwayu joined Kabira Country Club in November 2003 as a housekeeper before he was promoted to a receptionist because of his good performance. He served the hotel for about 15 years.
Kabira Country Club was also ordered to pay the costs of the suit. (File photo)
________________
The Industrial Court has ordered Kabira Country Club to compensate its former employee with sh9.42m after finding that the hotel unlawfully and unfairly dismissed him over allegations that he slept while on duty.
Justice Anthony Wabwire Musana, sitting with panelists Michael Matovu, Adrine Namara and Susan Nabirye, held that the hotel failed to accord Robert Elwayu a fair disciplinary hearing and also failed to prove the allegation of gross misconduct that led to his dismissal.
The labour dispute arose from a complaint filed by Elwayu before the Ministry of Gender, Labour and Social Development before he was referred to the Industrial Court.
Court heard that Elwayu joined Kabira Country Club in November 2003 as a housekeeper before he was promoted to a receptionist because of his good performance. He served the hotel for about 15 years.
According to court records, Elwayu worked a 12-hour shift, six days a week, and claimed he was never paid overtime despite also working on public holidays. He further alleged that he was denied annual leave in 2004, 2005 and 2006.
The former employee told court that while on duty during the night shift on November 30, 2018, he developed a severe headache and informed his supervisor, who allegedly advised him to place a wet towel on his head.
He testified that while trying to ease the headache, the General Manager found him and accused him of sleeping while on duty before threatening to terminate his employment.
Elwayu denied ever sleeping on duty, insisting that he was simply unwell. He also maintained that during his entire 15 years of service, he had never been accused of gross misconduct.
Court heard that he was verbally summoned to appear before a disciplinary committee on December 3, 2018, where he denied the allegation and explained that he had been suffering from a headache.
According to his evidence, Elwayu continued working after the hearing before proceeding on approved annual leave and sick leave.
However, while still on leave, Elwayu later learnt that his employment had been terminated after he received a dismissal letter on January 7, 2019. The dismissal letter had been dated December 14, 2018.
Elwayu further told court that he had never been shown the Closed Circuit Television (CCTV) footage, which the hotel claimed captured him sleeping on duty.
He also complained that the Human Resource Manual relied upon by the employer had never been given to him and argued that the Collective Bargaining Agreement signed between Kabira Country Club and the Uganda Hotels, Food, Tourism, Supermarkets and Allied Workers Union governed his employment since he was a union member.
The former employee further testified that in March 2019 he was called by the respondent and paid sh1.2m as terminal benefits.
He asked court to declare his dismissal unlawful, award him compensation for; unfair dismissal, unpaid overtime, public holidays worked, and untaken annual leave. He also asked for severance pay, general damages, interest and costs.
Former Human Resource Officer Francis Kiggundu told court that sleeping on duty amounted to gross misconduct under the hotel’s Human Resource Manual and justified his summary dismissal.
Kiggundu testified that Elwayu attended a disciplinary hearing on December 3, 2018, where he allegedly admitted sleeping while on duty because he had a headache.
Kiggundu further stated that the claimant’s terminal benefits were calculated under the Collective Bargaining Agreement before he later received sh1.2m during mediation before the Ministry of Gender, Labour and Social Development.
However, during cross-examination, Kiggundu admitted that he joined Kabira Country Club in July 2018 and, therefore, had no personal knowledge of Elwayu’s employment before then.
He also admitted that he had no documentary evidence showing that Elwayu worked normal hours throughout his employment or that overtime had been paid.
Kiggundu further conceded that although he had viewed CCTV footage allegedly showing Elwayu sleeping, the footage was not available before court.
The hotel’s Director of Human Resources, Venkata Chalam Ramaswamy Iyer, also defended the dismissal but admitted that he was not present when the alleged incident occurred.
He confirmed that the dismissal letter was dated December 14, 2018, while Elwayu was on annual leave and conceded there was no written policy permitting termination of an employee while on leave.
He also admitted that there was no proof that the Human Resource Manual had ever been shared with Elwayu or that he had agreed to be bound by its provisions.
Justice Musana held that Kabira Country Club failed to satisfy both procedural and substantive fairness required under the Employment Act.
The judge observed that Elwayu was verbally summoned to the disciplinary hearing on the very morning it was conducted and was required to appear only about 30 minutes later.
The judge said the Employment Act requires employers to issue a written notice explaining the allegations against an employee, provide sufficient time to prepare a defence and inform the employee of the right to be accompanied during disciplinary proceedings.
“The claimant’s right to a fair hearing was systematically and fundamentally violated, rendering the dismissal unlawful on procedural grounds,” Justice Musana ruled.
The judge further found that although sleeping on duty is recognised as gross misconduct capable of justifying summary dismissal, the respondent failed to prove that Elwayu actually committed the offence.
He also observed that the General Manager, who allegedly witnessed the incident, never testified.
The court further found that the alleged confession recorded in the disciplinary minutes remained disputed because Elwayu consistently denied sleeping and maintained that he merely suffered a headache.
Justice Musana held that while employers need not prove misconduct beyond reasonable doubt, they must establish valid grounds for dismissal based on credible evidence obtained through a fair disciplinary process.
“The omission of this critical evidence meant the employer did not prove the reason for dismissal,” the judge ruled.
The court, however, dismissed Elwayu’s claims for overtime, payment for untaken leave and compensation for work done on public holidays.
Justice Musana held that claims for overtime and public holiday pay are special damages, which must be specifically proved through duty rosters, attendance records, timesheets or similar evidence.
The judge found that Elwayu had not produced sufficient evidence to support those claims.
The court also dismissed the annual leave claim, holding that it related to the years 2004, 2005 and 2006 and was therefore barred by the six-year statutory limitation period.
Consequently, the Industrial Court declared that Elwayu was unlawfully and unfairly dismissed from his employment by Kabira Country Club.
The court ordered the hotel to pay him sh343,000, equivalent to four weeks’ wages, for failing to comply with the statutory disciplinary procedure under the Employment Act.
The judge also awarded Elwayu sh5,247,900 as severance pay after finding that his dismissal was unjustified.
The court further awarded him sh400,000 as repatriation allowance in accordance with the Collective Bargaining Agreement. Although Elwayu had sought sh1m, the judge held that the court could not rewrite the contractual terms agreed upon by both parties.
In addition, Elwayu was awarded sh3.43m in general damages after the court considered his 15 years of service, the manner in which he lost his employment, and the hardship occasioned by the unlawful dismissal.
The total award amounts to sh9,420,900, on which the court ordered interest at 12% per annum from the date of the award until payment in full.
Kabira Country Club was also ordered to pay the costs of the suit.
Justice Musana said employers must observe both procedural and substantive fairness before dismissing employees, adding that allegations of gross misconduct alone are insufficient unless supported by credible evidence and a lawful disciplinary process.