CONTINUATION

The other requirement of a contract of service under the employment act are
stipulated under the employment act under Section 59 of the Employment Act a
contract and these include the following
a) Full names and address of the parties.
b) b) The date on which employment began
c) c) Title of the job the employee is employed to do
d) d) Place where the employee’s duties are to be performed
e) e) Wages which the employee is entitled to receive or the means by which
they can be calculated intervals they are too paid in, the deductions or other
conditions to which they shall be subject.
f) f) The rate of any overtime pay applicable to the employee
g) g) The employee’s normal working hours and the shifts or days of the week
on which such work is to be performed.
h) h) The number of days annual leave to which the employee is entitled and
their entitlement during such leave.
i) i) The terms or conditions relating to incapacity for work due to sickness or
injury, including a provision for sick pay.
j) j) Length of the notice of termination
k) k) Terms and conditions relating to incapacity for work due to sickness or
injury,
l) including any provision for sick pay
Written particulars
Section 59 of the Employment Act requires employers to provide employees a
notice in writing of the specified particulars of employment. The notice is called
the statement of written particulars. The notice shall be given to the employee not
later twelve weeks (3 months) after the date on which employment commences.
Where there are any agreed changes in the written particulars, the employer shall
issue a written notice of the change to the employee. The general aim of this
provision is to show explicitly and clearly the most important elements of an
employee’s contract. It is intended to be a mirror of the agreement although it is
not the agreement itself. The most widely cited statement of the effect of the
written statement is found in System Floors (UK) Ltd V Daniel [1982] ICR 54,
where Browne- Wilkinson J said, “It provides very strong prima facie evidence of
what were the terms of the contract between the parties but does not constitute a
written contract between the parties. Nor are the statements of the terms finally
conclusive; at most they place a heavy burden on the employer to show that the
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actual terms of the contract are different from those which he has set out in the
statutory statement.”
Under section 60 of the Employment Act, the written particulars of an
employment contract shall be admissible evidence in the courts of law of the terms
and conditions of employment

HUMAN RESOURCE MANUAL

This provides for terms and conditions of employment. Most corporations are
required to have them.

Under S. 59(2) of the Employment Act, it is provided that (2) For any or all of
the information required by subsection (1), the employer may, in writing, refer the
employee to a document which is reasonably accessible to the employee during
working hours at the place of work which contains the relevant information in a
form and in a language that the employee can reasonably be expected to
understand

1. Kind of employees.
There are numerous kinds of employees which ought to be ascertained since
certain categories of employees have further protections by the law.
a) How many are disabled.
b) Illiterate. S. 26(1) of the Employment Act requires A contract of service
made with an employee who is unable to read or understand the language in
which the contract is written to be attested to
c) Male
d) Female

2. Holidays and leaves.

Employees are entitled to holidays and certain leaves.
S. 51 of the Employment Act, an employee shall not be required to work for an
employer for more than six consecutive days without a day’s rest, which shall be
taken on any day which is customary or as shall be agreed between the parties.

Under S. 53 the maximum working hours for employees shall be forty eight hours
per week, but the parties may agree to more than that.

S. 54 entitle an employee to an annual leave and public holidays.

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S. 55 entitle an employee to sick pay that has completed not less than one month’s
continuous service with an employer.
S. 56 entitle female employees to maternity leave of sixty working days following
child birth or miscarriage. While a male employee is in that respect entitled to a
paternity leave of four working days under S. 57

3. Duration of employment.
The employment Act provides for certain rights to employees and employers
depending on how long the employee has been working. For example under
Section 54(4) Employment Act 2006 annual leave applies to only to employees—
(a) Who have performed continuous service for their employer for a minimum
period of six months? (b) Who normally work under a contract of service for
sixteen hours a week or more?

4. Sexual harassment policy.

The Employment Act (2006) under S.7 defines sexual harassment as unwelcome
sexual advances, requests for sexual favors, and other verbal or physical conduct of
a sexual nature Further, S. 7(4) provides that every employer who employs more
than twenty five employees is required to have in place measures to prevent sexual
harassment occurring at their work place.
The 2012 Employment (Sexual Harassment) Regulations are important in both
defining the phenomenon and compelling employers to adopt anti – sexual
harassment policies. It is important for the HR manual to contain a policy against
sexual harassment.

Regulation 3 of the Employment (Sexual Harassment) Regulations is to the

effect that; an employer with more than twenty-five employees shall adopt a
written policy against sexual harassment which shall include the following:-
a. notice to employees that sexual harassment at the workplace is
unlawful;
b. a statement that it is unlawful to retaliate against an employee for
filing a complaint of sexual harassment or for co-operating in an
investigation of a sexual harassment complaint;
c. a description and examples of sexual harassment;
d. a statement of the consequences for employers who are found to have
committed sexual harassment;
e. a description of the process for filing sexual harassment complaints
and the addresses and telephone numbers of the person to whom
complaints should be made;

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 f. education and training programs on sexual harassment for all
employees on a regular basis; and
g. Additional training for the committee on sexual harassment,
supervisory and managerial employees.
Regulation 5 expressly prohibits the dissemination of sexual materials at a place
of employment. An employer shall specifically prohibit the dissemination of
sexually explicit voice mail, e-mail, graphics, downloaded material or websites in
the workplace and shall include these prohibitions in the workplace policy.
Regulation 8 directs that an employer with more than 25 employees shall designate
a person who is gender-sensitive to be in charge of sexual harassment complaints.
Regulation 10 provides for the composition of a sexual harassment committee of
four members who shall be persons knowledgeable in and sensitive to gender and
sexual harassment issues.

5. Discrimination and gender equality.

Further issues to be addressed by the Human resource department include the issue
of protecting the employee’s rights against discrimination and promoting equality
in dealing with all employees.
S.6 of the Employment Act prohibits discrimination in employment. It makes it a
duty of all parties to promote equality of opportunity with a view to eliminating
any discrimination in employment. Discrimination is unlawful if it is based on
race, color, sex, religion, political opinion, national extraction or social origin, the
HIV status or disability.
Article 40(1)(b) of the 1995 Constitution of Uganda as amended provides that
“Parliament shall enact laws to ensure equal payment for equal work without
discrimination.” In the same regard, Section 6(7) of the Employment Act
stipulates: “Every Employer shall pay male and female Employees equal
remuneration for work of equal value.
Also, the fact that men are given higher pay because they don’t go on maternity
leave is discriminatory as S.54 of the Act provides that pregnant female employees
are entitled to paid maternity leave and this should not constitute a ground for
reducing their pay or increasing pay for the men who don’t go on maternity leave.

6. Age of school children.

Under S. 11 of the Contracts Act 2010, (1) A person has capacity to contract
where that person is— (a) eighteen years or above; Subsection thereof provides
that (2) Notwithstanding this section, a person of sixteen years or above has the
capacity to contract as provided under Article 34 (4) and (5) of the Constitution.
Under this article a child of 16 years can be employed.

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However the Employment Act under S. 32 prohibits employment of a child under
the age of twelve (12) years in any business, undertaking or work place. A child of
14 years can be employed for light work carried out under the supervision of an
adult and which does not affect the child’s education.

A child shall not be employed in any work which is injurious to his or her health,
dangerous or hazardous and neither shall a child be employed between the hours of
7 pm and 7 am.

Regulation 3 of the Employment (Employment of Children) Regulations 2012

a child under the age of fourteen years shall not be employed in any business
undertaking or workplace, except—(a) for light work carried out under the
supervision of an adult; and (b) where the work does not exceed fourteen hours per
week It is therefore important for the corporation to determine the age of the
secondary school children who are sales persons so as to be in conformity with the
above cited legal provisions.
Regulation 2 of the employment (employment of children) regulations 2012,
defines light work to mean work which is
a) Not harmful to a child’s health
b) Not harmful to a child’s development
c) Not prejudicial to a child’s attendance at school
d) Not prejudicial to a child’s participation in vocational training and
e) Not in excess of 14 hours per week.
Regulation 6 designates a list of hazardous work not permitted for employment of
a child Section 32(5) of the Employment Act and Regulation. 12 of the
employment act (employment of children) regulations bar right work for
children. The provisions restrict a child’s working work to be between 7:00am and
7:00pm.
Over time work is prohibited for children under Regulation11.
A child before engaging in any job must undergo a medical examination as per
Regulation 13 (1) and sub regulation 2 requires that a medical examination is
done every 6 months. The child upon undergoing a medical examination under sub
regulation 1 must be issued with a medical certificate in the form prescribed in the
4th schedule.
An employer is further required under Regulation 14(1) to obtain authorization
from the commissioner before employing a child aged between 15 years to 17
years.
The employer must also maintain a register of the children he/she is engaging in
employment as per Regulation 15 and the register in this form is prescribed in the
5th schedule to the regulations.
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EXPECTANT MOTHERS
Article 33 recognizes the special role women play in recreation and that the same
must be taken into account.
These are pursuant to Regulation 42(1) of the Employment Regulations 2011 not
obliged to perform work which is harmful to their health.
The employer is mandated under Sub-regulation 2 to provide an expectant mother
with any of the following alternatives:
1. Flexible hours of work
2. Lighter work load
3. Alternative arrangements of work

Section 75 (a) further emphasizes that a female employee’s pregnancy or any other
reason connected with her pregnancy shall not constitute a fair reason for dismissal
or for the imposition of a disciplinary penalty.

CASUAL EMPLOYEES
Section 2 of the employment Act defines a casual employee to mean a person
who works on a daily or hourly basis where payment of wages is due at the
completion of each day’s work.
In KITAKA ERIMUS V AIM DISTRIBUTORS, LABOR DISPUTE
REFRENCE NO
75 OF 2017, the industrial court defined a casual laborer as one who gets paid per
day after doing what he has been engaged to do. There is no guarantee that his
employer will give him a job the next day and the obligations and responsibilities
towards either the employee or the employer end with the work and payment of a
particular day.
Under Regulation 39(1) of the Employment Regulations 2011, a person must not
be employed as a casual employee for a period exceeding four months. Under sub-
regulation 2, a causal employee engaged continuously for 4 months is entitled to a
written contract and such employee ceases to be a casual employee and all rights
and benefits enjoyed by other employees will apply to them.
IN KITAKA ERIMUS V AIM DISTRIBUTORS ( SUPRA) , the industrial
court defined the phrase ‘continuous engagement’’ as used in Regulation 39(2) of
the Employment Regulations to connote engagement every day to do particular
works over a certain period being four months in this case. For a person to rely on
Regulation 39(2), they must lead evidence to show that they were‘continuous
engagement for four months. Failure to do so means that the person was a casual
laborer

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In WILSON WANYANA V DEVELOPMENT AND MANAGEMENT
CONSULTANTS INTERNATIONAL HCT00 CS.0332 OF 2004, it provides
for test of a causal worker. Justice Yorokamu Bamwine stated that there are two
main factors which identify a casual employee. First, he/she is not employed for
more than 24 hours at a time and secondly his/her contract provides for payment at
the end of each day.

PERSONS WITH DISABILITIES.

Section 1(c) of the Persons with Disabilities Act 2019, defines a disability as a
substantial functional limitation of a person’s daily life activities caused by
physical, mental or sensory impairment and environmental barriers resulting in
limited participation in society on equal basis with others.
Section 6 (3) of the Employment Act bars discrimination in employment on the
basis of disability. This is buttressed by Section 9 of the persons with Disabilities
Act of 2019.
Regulation 35 of the employment regulations, 2011 impose various obligations on
an employer in regard to employees with disabilities e.g.
1. To encourage person with disabilities to apply when advertising for
vacancies subject to the inherent requirement of a particular job.
2. Avoid using screening methods during interviews which have the effect of
discriminating against a person on grounds of their disability.
3. Ensure that the physical officers of a workplace are accessible and to
provide assistance and devices required by an employee with disability to
enable them execute their duties

7. Migrant workers;
S. 37 Employment Act provides that; (1) No person shall organize the illicit or
clandestine movement of migrants for employment for purposes of departing from,
passing through or arriving in Uganda, or give assistance to any organization for
that purpose. Subsection (2) A person shall not employ a person whom he or she
knows to be unlawfully present in Uganda.

8. Labour unions.
Article 40(3) of the 1995 Constitution of the Republic of Uganda, as amended
provides for the right to form and join trade union. The Labour Unions Act No. 7
of 2006 introduced a new array of rights for employees. Under the Act, employees
are granted the right to organize themselves into labour unions and participate in
the management of the said unions; collectively bargaining; engage in other lawful
activities for the purpose of collective bargaining or any other mutual aid practice;
and withdraw their labour and take industrial action (S.3).
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S.4 of the same Act provides that Employers are prohibited from interfering with
the right of association of the different unions; contravention of this legal position
is an offence on the part of the employer according to Section 5 of the Act.
Under S. 76 Employment Act; (1) The organization or intended organization of a
strike or other form of industrial action shall not constitute a fair reason for
dismissal or the imposition of a disciplinary penalty where the strike or other
industrial action is lawful. (2) The participation or intended participation of an
employee in a strike or other form of industrial action shall not constitute a fair
reason for dismissal or for the imposition of a disciplinary penalty where the strike
or other industrial action is lawful.

9. Labour disputes and existing litigations

Part III of the Employment Act provides for the office of the Labour Officer to
handle employment related matters and complaints.
The Labour Disputes (Arbitration & Settlement) Act No. 8 of 2006 also
provides for avenues of resolving disputes involving workers. It aims to simplify
and reduce the statutory procedures for settling labour disputes, encourage the use
of voluntary conciliation and arbitration and the observance of collective
bargaining agreements. The Act provides for the establishment of the Industrial
Court, which is mandated to arbitrate on labour disputes referred to it under the Act
and to adjudicate upon questions of law and fact arising from references to the
Industrial Court by any other law.
10.Working environment conditions.

The Occupational Safety and Health Act No. 9 of 2006 applies health and safety
measures to every workplace or working environment as defined in Section 2 of
the Act. It extends to both the private and public sector employers and necessitates
that the employer provides compensation for any injuries sustained, diseases
contracted or death suffered in the course of and as a result of employment. It also
provides for general health and welfare provisions, including the provision of
sound construction sites, proper ventilation of working environment, cleanliness,
proper lighting, water, toilet services and first aid facilities for the workers and
social security

 The National Social Security Fund Act, (Cap. 222) provides for social
security benefits for employees in the private sector; S. 11 requires every
contributing employer, to pay to the fund for every month, a standard
contribution of 15 percent calculated on the total wages paid during that

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 month to that employee. The employee contributes 5% and the employer
10%.
 Over view and employment relationship
 General employment information
 Attendance at work
 Work place professionalism and company representation
 Pay roll information
 Benefits
 Employee time off from the workplace
 Use of Company Equipment and Electronics
 Monitoring in the workplace
 Performance expectations and Evaluation
 Disciplinary Procedure, Termination and Exit

FORMALITIES
1. ORAL AND WRITTEN CONTRACTS.
Section 25 of the Employment Act states that a contract of service other than a
contract which is required by the employment act or any other act to be in writing
maybe made orally and except as otherwise provide, the act applies equally to oral
and written contracts.

2. WRITTEN PARTICULARS
Section 59 (1) of the Employment Act requires employers to provide employees
with a notice in writing specifying the particulars of employment. The notice is
called a statement of written particulars.
The notice must pursuant to Section 59 (3) of the Employment Act be given by
the employer to the employee not later than 12 weeks after the date of which
employment commenced

The statement of written particulars is under Section 60 (a) of the employment

Act is admissible evidence in courts of law of the existence of the terms and
conditions about which there is a dispute.
In addition, under Section 60 (b) of the Employment Act, the written statement of
particulars creates a rebuttable presumption that the terms and conditions of
employment are accurately stated in the written particulars and in any notified
changes.
In SYSTEMS FLOORS (UK) LTD V DANIEL (1982) ICR 54, Browne-
Wilkinson j stated that the written statement of particulars provides very strong
prima facie evidence of what were the terms of the contract between the parties but
does not constitute a written contract between the parties. Nor are the statements
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conclusive terms; at most they place a heavy burden on the employer to show that
the actual terms of the contract are different from those which he/she has set out in
the statutory statement

Terms of an Employment Contract/ Contract of Service

The parties to an employment contract agree on the terms of the contract
personally and/ or through employer associations and labour unions or both. All
such contracts cover basic issues such as salary, hours of work, place of work,
position held etc but their content will vary because what is deemed necessary for
inclusion depends on the type of organisation, the position held, and so forth The
parties agree to the terms provided the terms are not less than what the
Employment Act provides or do not purport to exclude the application of the
provisions of the Act to the detriment of the employee. Where the contract is oral,
the employee agrees to work on certain terms that are explained verbally. Contracts
which may impose certain elaborate duties and provide for complex remuneration
arrangements tend to take a written form.

Terms are incorporated into a contract of employment in the following ways:

(a). Express terms
Express ones are those agreed upon by the parties eg your job description and
remuneration, your job title.
Express terms are those actually agreed on by the parties. When the contract is
written, the terms will appear in the document forming their contract. Where it is
oral, they are verbally explained to the employee although practical difficulties can
arise in proving what was agreed. Where a dispute or difference arises between the
parties concerning a matter which is covered by an express term, then it is a
question of the true construction of that term. The law does not lay down any
special rules for the interpretation of employment contracts. However, the courts
tend to require good faith, observance of specific terms and insist that terms which
confer a wide discretion on one party, usually the employer, should not be
exercised unreasonably in the circumstances. On the other hand it is not for the
courts to rewrite extravagant terms to which the parties have agreed. Although a
contract of employment need not be in writing, it is of value with regard to such an
important contract that its terms be reduced to writing or evidenced in writing. In
this way disputes can be averted more easily and evidence will be easier to obtain.
(b) Collective agreements

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Terms in a collective agreement are incorporated into a contract of employment.
See sec. 2 for the definition of a collective agreement and also sections 38 & 39 of
the Labour Disputes (Arbitration & Settlement) Act 2006.
(c) Implied terms
It would be impossible in making the contract at the outset to cover every
eventuality, and as such there will be instances where the parties never reached any
agreement on a particular point or never even considered the matter. And so in
such instances, it may be appropriate to fill the gap by implying a term into the
contract. Therefore, in the absence of a written term certain terms may be implied.
Important to note is that an implied term cannot contradict an express term, but an
implied term can control the exercise of an express term. In United Bank v.
Akhtar [1989] I.R.L.R 507, there was an express mobility clause in the contract
between the bank and Akhtar who was a bank clerk, providing that bank had the
right to move employees to any branch in the United Kingdom, and discretion as to
whether or not it would give relocation allowances. Akhtar was given less than a
week’s notice to move permanently from the Leeds branch where he worked to the
Birmingham branch. He requested for three months’ notice to enable him sell his
house and also the fact that his wife was sick. This was rejected by the bank
relying on the mobility clause in the contract. On application to the Employment
Appeals Tribunal, it was held that although an express term could not be
contradicted by an implied term, it could control its exercise. And in this case a
term was implied that the bank should give reasonable notice of exercise of the
mobility clause to enable Akhtar comply with his contractual obligations to move.
Because employment contracts establish a somewhat unique continuing
relationship the courts tend to imply some terms in circumstances where those
terms may not be implied in other contracts. Implied terms of employment
contracts may be on the basis of: Implied by facts (i.e. so obvious that it goes
without saying); Business Efficacy (i.e. to achieve the desired end of the contract),
Custom and practice (i.e. must be notorious/ well known, must be certain, must
be reasonable, and must be a custom regarded as obligatory), Subsequent conduct
of the parties(i.e. what they did after the employment commenced) and; Terms
implied by law (i.e. may be implied by the common law or statute (statutory
terms prescribed in various legislation).

Implied Statutory Terms

Statutory terms are rights based on laws passed by parliament. These terms will be
implied in every contract and enforced by the courts even if the parties do not

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 expressly agree upon them. They are contained in various statutes and these
include:
i. The employment Act : Duty to provide work (sec. 40); Wages & deductions (sec.
40 (4), 41, 43, 44, 46, & 50); Weekly hours of work and rest (sec. 51 & 53); Leave
(Annual, sick, maternity, paternity, and compassionate) & public Holidays (sec.
41(6) (c), 54, 55, 56, and 57); Sick pay (sec. 55); Notice periods (sec. 58 & 67);
Disciplinary procedures (part VII) and; Continuous service & severance allowance
(part VIII).
ii. The Workers compensation Act: the Act regulates compensation to employees or
their dependants (in case of death of the employee) for injuries sustained in the
course of employment. See part II of the Act.
iii. The National Social Security Fund Act: it obliges every employer to deduct and
remit to the fund 5 % of the employees’ wages per month and also contribute 10%
of the employees salary to the fund
iv. The Occupational Safety & Health Act : regulates workers conditions of work
and provides for duties obligations, rights and responsibilities of employers and
employees.
v. Labour Unions Act: allows employees’ to form and belong to labour unions of
their choice and rights conferred therein.
Implied terms
Implied terms could arise from common law, custom of the business and business
efficacy. Customs relate to a particular type of trade which takes place over and
over. When do you imply a term under business efficacy? You must show that the
term is reasonable, equitable and fairly.
The burden is on the employer to prove that the implied term is justified and
reasonable
Reigate v Union Manufacturing Co Ltd (1918) 1 KB 592
Scrutton L.J. had said that, “A term can only be implied if it is necessary in the
business sense to give efficacy to the contract”.He went on to say that a term
would only be implied if, “it is such a term that it can confidently be said that if at
the time the contract was being negotiated” the parties had been asked what would
happen in a certain event, they would both have replied: “‘Of course, so and so will
happen; we did not trouble to say that; it is too clear.’”

Devonald v Rosser and Sons (1906) 2 KB 728 In that case, the court observed as
follows; a custom can’t be read into a written contract unless it is so universal that
no workman should be supposed to have entered into a service without looking at
it as part of a contract.
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In Meek v Port of London Authority (1918) [[1918] 2 Ch 96], the long-
established deduction of income tax was held not to be incorporated into the
employee's contract because employees did not know of it
Implied terms under Common Law
These are terms, which are implied into every contract of employment. These
implied terms are often expressed as duties of the employers and employees
respectively
Duties of the employer

1. Obligation to pay wages;

There is a duty of the employer to pay the employee during the period of
employment; authorities seem to suggest that payment should not be paid in part
but in full. The employer would be in breach if they tell the employee how to use
their money.
Devonald v Rosser (1906) KB 728
The employer closed the works (tinplate) through lack of business. Two weeks
later the employer gave all employees one month’s notice of the termination of this
contract. Devonald claimed pay for the two weeks before the notice was given.
This was granted because there was an implied duty that the employer would pay
the employee
Definition of wages;
Delaney v Staples (1992) IRLR 191 Delaney was summarily dismissed by her
employer and given a cheque for $82 as payment in lieu of notice. Subsequently
the employer stopped the cheque, alleging that Delaney had taken away
confidential information and that therefore he was entitled to dismiss her without
notice. Therefore, a payment in lieu of notice does not amount to wages.
Held;
Lord Browne-Wilkinson; the essential characteristic of wages is that they are
consideration for work done or to be done under a contract of employment. If a
payment is not referable to an obligation on the employee under a subsisting
contract of employment to render his services, it does not fall within the ordinary
meaning of the word wages.
Under section 47, the Employee is entitled to wages that is to be paid by the
employer periodically as contained in their terms of the employment contract. In
Waga B.Francis V The chief Administrative Officer, Marachan and Maracha
District Local Govi’t No. 0005 0f 2016, Justice Mubiru elaborated that a contract
of service requires payment of wages by the employer, performance of work by the
employee and a relationship of subordination.

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An employee can take action of wages are not paid. Even when the term of a
contract is not clear as to payments, the employer will be impliedly undertaken to
pay such an employee.
In Orman v Saville Sportswear Ltd [1960] 1 WLR 1055 Mr. Justice Pilcher said
the authorities which have been cited to him,
“establish the following proposition, where the written terms of the contract of
service are silent as to what is to happen in regards to the employee’s right to be
paid whilst he is absent from work due to sickness, the employer remains liable to
continue paying so long as the contract is not determined by proper notice, except
where a condition to the contrary can be properly inferred from all the facts and
the evidence in case. If the employer seeks to establish an implied condition that no
wages are payable, it is for him to make it out, and the court in construing the
written contract, will not accept any implied term”.
Hanley v Pease and Partners Ltd (1915) 1 KB 698
An employee absented himself for one day without permission. On his return, he
was suspended for one day without pay. The employer, under the terms of the
contract of service, had no power to suspend the employee although he had the
power to dismiss him and the employee was held entitled to his full salary for the
period during which he was alleged to have remained under suspension on the
ground that the suspension itself was 'ultra vires
As a result of this, it is clear that employers cannot suspend without pay where
there is no express or contractual right to do so.
In Browning v Crumlin Valley Collieries (1926) 1 KB 522,
Browning and others were miners who refused to work in the defendant’s mine
because it had become unsafe. It was found that this was not due to the fault of the
employer but was caused by natural forces. The miners ought to recover
compensation for the wages they lost during the period when the mine was closed
to allow the essential repair work to be done.
Held; Lord Greer;
That the consideration for work is wages, and the consideration for wages is
work”. That the men did not work, they were not ready and willing to work and
they were not entitled to wages. That no employer would have consented to agree
that the workmen should be free to withhold their work if the mine became
dangerous through no fault on his part yet should be entitled to wages

2. Duty to provide work

In the modern view there is an implied obligation on part of the master to provide a
reasonable amount of work to be done. Section 40(1) of employment Act, 2006 as
a general rule, provides that the employer shall provide work to his or her
employee in accordance with the contract of service, during the period for which
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the contract is binding on and the number of days equal to the working days
expressly or impliedly provided for in the contract.

This duty is unclear. It is possible that the failure to provide work might be a
breach of contract if:
1. Earnings depend on work being provided (eg a sales person remunerated by
commission)
2. The employee needs the opportunity to practise skills (eg a trainee).
Devonald v Rosser and Sons (1906) 2 KB 728
In a test case, Mr Devonald was a tinplate rollerman at Rosser & Sons’ factory in
Cilfrew, South Wales. He was paid for each completed box of 112 tin plates. His
contract said he was required to do the tasks set by the employer and that he would
get 28 days' notice before termination. Unfortunately, tinplates were in decline and
the employer announced the plant would close in two weeks. There was a six-week
period, therefore, when the employer gave no work. The question was whether the
employer had to pay, given that payment was really according to piece.
It was held the necessary implication to be drawn from this contract is at least that
the master will find a reasonable amount of work up to the expiration of a notice
given in accordance with the contract. That there is nothing unreasonable in the
implication that the master shall look at least twenty-eight days ahead, or, to take
the extreme case, as the notice has to be given on the first Monday in the month,
fifty-seven days ahead, so as to place himself in a position to provide the workman
with work during the period covered by the notice
In Clayton and Waller Vs Oliver (1930), Oliver was to be employed in one of the
three leading roles in musical called, Hit the Deck. The employer then reneged
(broke the promise). Oliver was entitled to damages for loss of the opportunity to
enhance his reputation.
Similarly in Gulaballi Ushillani Vs Kampala Pharmaceuticals Ltd SCCA
6/1978, the appellant who had a 5 year contract was denied work after a period of
14 month only .Court held that the failure by the respondent to provide work to the
appellant and give her remuneration and other benefits due to her under the
provisions of the contract is such a fundamental breach as to amount to repudiation
of service

However there are exceptions to the general rule as provided for under;
S. 40(2) of the employment Act 2006 includes instances of act of God or civil
strife and termination of contract of service by the employee, frustration of contract
and suspension of performance.
Sub-section 3, provides exemption clauses where the employer is not under any
liability to provide work where interruptions to his or her business activities are
Page 15 of 59
caused by natural calamities, strike, go-slow or other industrial action, economic or
technological reasons rescuing into shortage or reduction of work beyond the
employer’s control.
Sub-section 4 imposes a condition to the employer who fails to provide work as
required to his or her employee, to pay the employee in respect of every day or
which he or she shall so fail, wages at the same rate as if the employee had
performed a day’s work.
However, provided that the employee is paid, it can be concluded that there is no
duty to provide work
Turner v Sawdon and Co (1901) 2 KB 653
Turner was a salesman who was paid a fixed salary and was not entitled to
commission. He brought an action for breach of contract because although his
salary continued to be paid, he was given no work to do.
Held;
This was a contract by the master to retain the servant and during the time covered
by the retainer to pay him wages under such a contract. In such a situation the
master is not under obligation to provide work.

3. Duty to indemnify
The servant is generally entitled to an indemnity from the employer against all
liabilities and loses reasonably incurred in the performance of his duties. This
would also include such obvious expenses or the purchase of certain related
equipments. It would also include indemnifying the employee for any costs
incurred in defending a legal action. In the case of Re Famatina Development
Corp. Ltd [1914]2 Ch 271 the Court ordered the employer to indemnify an
employee who had successfully defended a libel action brought against him while
acting in the his employment

4. The Duty of an employer to exercise care to provide safe system of work

Under common law there is a duty to provide a safe system of work and this
includes providing adequate materials and selecting proper staff. In Wilson’s and
Clayde coal co. Vs English13 [1938] AC 57, it was held a master has duty to
provide a safe system of work which duty he cannot delegate to an agent
The Occupational safety and Health Act, 2006 provides for this duty for example
section 26 provides for duty to provide safe premises, this duty is specifically
imposed on the employer or the person who has to extent control of premises to
which this Act applies

In carrying out this duty, the employer should appoint competent persons to do the
work that does not relieve the employer of liability

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Wilsons & Clyde v English (1937)3 All ER, 628.
In an action by a miner against his employers for damages for personal injury
alleged to be due to the negligence of the employers in that they had failed to
provide a reasonably safe system of working the colliery, questions were raised (i)
whether the employers were liable at common law for a defective system of
working negligently provided or permitted to be carried on by a servant to whom
the duty of regulating the system of working had been delegated by the employers,
the employers’ board of directors being unaware of the defect, and (ii) if they were
liable, whether the employers were relieved of their liability in view of the
prohibition contained in the Coal Mines Act 1911, s 2(4), against the owner of a
mine taking any part in the technical management of the mine unless he is
qualified to be a manager:—
Held – (i) the employers were not absolved from their duty to take due care in the
provision of a reasonably safe system of working by the appointment of a
competent person to perform that duty. Although the employers might, and in
some events were bound to, appoint someone as their agent in the discharge of
their duty, the employers remained responsible
The duty extends to ensuring that an employee is not injured.
Johnstone v Bloomsbury Health Authority [1991] 2 All ER 293
The plaintiff was employed by the defendant health authority as a junior hospital
doctor under a contract of employment which required him, to work 40 hours per
week and to ‘be available’ for overtime of a further 48 hours per week on average.
The plaintiff brought an action against the authority alleging breach of the
authority’s duty as his employer to take all reasonable care for his safety and well-
being and seeking a declaration that the plaintiff could not lawfully be required by
the defendant to work under his contract of employment for so many hours in
excess of his standard working week as would foreseeably injure his health. The
plaintiff alleged that he had been required to work intolerable hours with such
deprivation of sleep that his health had been damaged and the safety of his patients
put at risk and that he suffered from stress and depression, had been physically sick
from exhaustion and had felt suicidal.
Held
Although the defendant health authority was entitled, under the contract of
employment by which junior hospital doctors were employed, to require the
plaintiff to work overtime of up to 48 hours average per week at its discretion, the
health authority had to exercise that power in such a way as not to injure the
plaintiff and accordingly it could not require the plaintiff to work so much
overtime in any week that his health might reasonably foreseeably be damaged. It
followed that if the pleaded facts were established the health authority would be in
breach of duty.
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That an implied contractual duty in a contract of employment such as the implied
duty imposed on an employer to take reasonable care for the health and safety of
his employees is subject to any express terms in the contract of employment
requiring an absolute duty on the part of employees to work certain specified
hours.
Paris v Stepney Borough Council [1950] UKHL 3
The plaintiff Paris was employed by the then Stepney Borough Council as a
general garage-hand. He had sight in only one eye, and his employer was aware of
this. The council only issued eye protection goggles to its employees who were
welders or tool-grinders. In the course of his usual work, Paris received an injury
to his sighted eye. He sued the council for damages in the tort of negligence. On
appeal it was decided that Stepney Borough Council was aware of his special
circumstances and failed in their duty of care to give him protective goggles.
That there was a breach of duty. The employer should have provided goggles to the
claimant because the seriousness of harm to him would have been greater than that
experienced by workers with sight in both eyes. The duty is owed to the particular
claimant not to a class of persons of reasonable workers.

This duty is non-derogable as seen in McDermid v Nash Dredging and

Reclamation (1987) 2 All ER 878 The defendants employed the plaintiff as a
deckhand in the course of dredging operations carried out by the defendants and
their parent company. While working on a tug owned by the parent company under
the control of a tug-master employed by the parent company he was seriously
injured. He brought an action for damages against the defendants. At the trial of
the action the judge found that the accident had been caused by the negligence of
the tug-master, who was deemed to be employed by the defendants. The judge held
that the defendants were vicariously liable for the tug-master’s actions.
Held;
An employer owed to his employee a duty to exercise reasonable care to ensure
that the system of work provided for him was safe and that required (a) the
devising of a safe system and (b) the operation of it. The essential characteristic of
the duty was that it was personal or non-delegable, ie if it was not performed it was
no defence for the employer to show that he had delegated its performance to a
person, whether his servant or not, whom he reasonably believed was competent to
perform it. In the events which occurred, the defendants had delegated both their
duty of devising a safe system of work and its operation to the tug-master, who
was negligent in failing to operate that system. It followed, therefore, that the
defendants were liable to the plaintiff
Safe working places include premises, equipment of use during work

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General Cleaning Contractors ltd v Christmas (1953) AC 180 (1952) 2 All ER
1110.
The respondent, a window cleaner, was employed by the appellants, a firm of
contractors, to clean the windows of a club. While, following the practice usually
adopted by employees of the appellants, he was standing on the sill of one of the
windows to clean the outside of the window and was holding one sash of the
window for support, the other sash came down on his fingers, causing him to let go
and fall to the ground, suffering injury. On a claim by him against the appellants
for damages,
Held
– even assuming that other systems of carrying out the work, eg, by the use of
safety belts or ladders, were impracticable, the appellants were still under an
obligation to ensure that the system that was adopted was as reasonably safe as it
could be made and that their employees were instructed as to the steps to be taken
to avoid accidents; the appellants had not discharged their duty in this respect
towards the respondent; and, therefore, they were liable to him in respect of his
injury.
Per Lord Reid: Where a practice of ignoring an obvious danger has grown up it is
not reasonable to expect an individual workman to take the initiative in devising
and using precautions. It is the duty of the employer to consider the situation, to
devise a suitable system, to instruct his men what they must do, and to supply any
implements that may be required

The duty to provide competent staff;

The employer must ensure that all employees are competent to carry out the duties
they are required to carry out. In General Cleaning Contractors Ltd v. Christmas
[1953] A.C 180, here a window cleaner was injured while cleaning sash windows,
having been improperly instructed on the safest method of undertaking the work.
The employer was held liable.

Duty to provide safe plant and equipment: Injuries during work;

The employer must take care both to provide safe equipment and properly maintain
it.
Under Section 3(1) of the Worker’s Compensation Act, any personal injury by
accident arising out of and in the coarse of a worker’s employment, the injured
worker’s employer shall be liable to pay compensation. Under Section 13 of the
Occupational Safety and Health Act, an employer is required to protect workers
by taking reasonable and practicable measures.
In Moses Kimeze v. Afri Plast Industries Ltd High Court Civil Suit No. 490 of
1997, the plaintiff during the coarse of his employment while he was instructed to
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lift materials that were lying near the rotation machine, his two fingers were cut off
by the machine that shaped soles of old shoes. It

Duties of the employee

An Employee is defined in Darlington Sakwa & Athanasius Rutaroch v The
Electoral Commission & 44 Others Constitutional petititon N0. 08 of 2006 to
mean an individual who has entered into or works under, or where the employment
has ceased, worked under, a contract of employment

1. The duty to provide services personally

It is always implied in the contract of employment that the employee undertakes to
serve the employer in person. The obligation to serve that it cannot be delegate or
assigned and that the servant is ready and willing to work. However it should be
noted that disability not a fault of the servant such as illness is not regarded as a
breach of the obligation to serve but a servant who deliberately puts out his power
to work e.g, through an illegal strike such a servant is regarded as one not willing
to work.
In the case of O’Grady Vs M. Saper Ltd [1940]2 KB 469 Mackinon L.J said that
there was no common law rule under which a temporally disabled employee is
entitled to payment during a period of absence and that in every case it depends
entirely on the terms of the contract which will often need to be ascertained by
reference to the fact. That the master servant relationship that exists at the heart of
employment law requires employee to present himself fit and ready to provide his
skills and services and at that point the onus switches to the employer to pay the
employee.

2. Duty to be Competent
An employee must be reasonably competent to perform the job for which he was
hired. Extreme incompetence will warrant instant dismissal. This however applies
where a servant has represented that he has a particular skill. In the case of
Harmer Vs Cornelius (1858) C.B.N.S. 236, it was observed that if there is no
general and particular representation of skill and knowledge the worker undertakes
no responsibility

3. Duty to exercise reasonable care in carrying out the duties of their

contract
It is an implied term of contract of employment that the employee will exercise
reasonable degree of care and skill in the performance of their work. If an
employee injures another person or property in the course of his/her duties, the
employee can be liable to indemnify the employer against any damages. In reality,
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the issue is typically dealt with through the employer’s insurance. Consequently it
had been held in Lister Vs Romford Ice and Cold Storage Ltd [1957] A.C 555
that where an employer suffered financial loss as a result of his employee breach of
his duty, the employee is under an obligation to indemnify the loss. In that case an
employee negligently drove a van in the course of his work and injured a fellow
employee, and on the basis of vicarious liability, the employer had to compensate
that fellow employee for his injuries. It was held that van driver was under an
implied contractual duty to indemnify the employer in respect of that sum.
Lister v Romford Ice and Cold Storage Co Ltd [1956]
Martin Lister and his father Martin Lister were working for the Cold Storage
Company, driving a waste disposal lorry. They went to a slaughterhouse on Old
Church Road, Romford. When they were entering through the gates to the yard, the
father got out ahead and the son, driving, backed over him injuring him. The father
sued the company and the company’s insurers also brought a claim against the son
in the company’s name for breach of an implied duty of care.
Held;
The House of Lords held that contracts of employment contain an implied term
that an employee owes a duty to take reasonable care of the employer's property
and in the performance of his tasks. So the lorry, which was entrusted to him, was
used carelessly when Martin ran over his father. This meant the son was
responsible, and because no term could be implied that an employee may be
indemnified by the employer or his insurance, the son would have to pay the
insurance company back

4. Obeying lawful and Reasonable Orders

The most fundamental duty of the employee is to obey the employer’s orders:
working as instructed is the employee’s basic consideration of the employer.
Breach of this duty is invariably regarded as a fundamental breach of contract
which at common law entitles the employer to dismiss the employee without
notice. The classic modern statement of the duty is found in the judgment of Lord
Evershed M.R .in Laws Vlondon Chronicle [1959]1 WLR 698 “willful
disobedience of lawful and reasonable order shows a disregard a complete
disregard-of a condition essential to the contract of service, and that unless he does
so the relationship is , so to speak, struck at fundamentally.
An order would have to be wholly unconnected with the employee’s job or
manifestly unreasonable before is would be rejected by court. An example of
orders which were held to be unreasonable in the case of Oatman Bank v
Chakarian (1930) A.C, 277,
Chakarian worked for the bank in Turkish Asia Minor. In 1919, he had narrowly
escaped execution at the hands of the Turkish forces. He requested a transfer

Page 21 of 59
outside Turkey but this was refused by his employer. Chakarian fled the
Constantinople to Athens and was summarily dismissed by the Bank.
Held; The Privy Council upheld his claim for wrongful dismissal. That the risk of
personal danger which caused Chakarian’s flight from Constantinople in disregard
of the appellant’s repeated refusals to allow him to leave, was real and justified
from the point of view of his personal safety. The appellant’s order to the
respondent to remain in Constantinople was not seriously maintained as a lawful
order to which the respondent was bound to obey at the grave risk to his person.
Morrish v Henlys (Folkestone) Ltd [1973] 2 All ER 137
An employee, who worked as a stores driver, was obliged to draw diesel oil for his
vehicle from his employers’ forecourt pumps as and when it was required. On
three occasions the employee drew five gallons of diesel oil and recorded the fact
on a monthly fuel invoice. On each occasion he subsequently discovered that the
entry of five gallons had been changed to one of seven gallons. The alterations had
been made by the employers’ manager who explained to the employee that this had
been done merely to cover a deficiency of two gallons in the forecourt pumps. The
employee refused to have an entry recorded showing that an extra two gallons had
been put into his vehicle when that was not the case. The employee was told that,
since he would not accept the alterations to the entries, there was no alternative but
to dismiss him. The employee was then dismissed. An industrial tribunal awarded
the employee £100 compensation for unfair dismissal but did not indicate how the
award was made up. However, the tribunal in their decision found that the
employee had contributed to his loss by not accepting the manager’s reassurance,
but did not state the amount by which the employee’s award had been reduced in
consequence. The employee appealed against the amount of the award and the
employers cross-appealed on the ground that the employee had not been unfairly
dismissed.
Held;
(i) the employee had not acted unreasonably in refusing to obey the
manager’s instructions; there was no implied term of the employee’s
contract of service that he should accept an order to connive at the
falsification of his employers’ records and the employee was fully
entitled to refuse to be a party to such falsification

5. Employee’s Obligation to Cooperate;

Over and above the question of obeying specific orders, employees are subject to
an overriding duty to co-operate with their employers in the performance of their
work.

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Because the employment contract envisages a continuing relationship between
employers and employee, it would seem that the employee must perform the
various contract obligations with a degree of good faith..
The notion of an implied duty of co-operation is becoming established and that it
may be used to require employees to do more than the contract requires. For
example, in Sim Vs Rotherham MBC [1986]3 WLR 851 involving industrial
action by teachers, the council deducted from a teacher’s wages a sum representing
a 35 minute period during which she refused to cover for an absent colleague. She
sued for the full wages, claiming that it was no part of the contract to cover. Scott
J. held that as members of the profession the contractual obligations of teachers
were more likely to be defined by the nature of their profession than detailed
specifically. These professional obligations included a duty to co-operate in the
running of the school in accordance with the reasonable instructions of the head
teacher.
A clear example of lack of co-operation is the taking of industrial action.
Secretary of State for Employment v ASLEF (1972) QB 443
ASLEF instructed its members to carry out a work-to-rule. The employees worked
strictly according to the company’s rules, and caused considerable disruption. The
Court of Appeal held that by carrying out the work-to-rule the employees were in
breach of the implied term of co-operating with the employer. Lord Denning
commented: ‘Now I quite agree that a man is not bound positively to do more for
his employer than his contract requires, he can withdraw his goodwill if he pleases.
But what he must not do is wilfully to obstruct the employer as he goes about his
business.’

It’s important to note that this term does not create a positive obligation on
employees to promote these commercial interests, but rather an obligation to not
act contrary to them

Duty of loyalty
It has long been recognized that the employment relationship is one of those
involving duties of good faith, sometimes expressed as a duty of fidelity or to give
good and faithful service. The duty may be subdivided into a number of more
specific duties
a) Secret profits
An employee is under obligation not to make secret profits from the employment
relationship, for example by taking bribes from the supplier to ensure that orders
are placed by the supplier and not another. It is clear that this is a fundamental
breach of contract. In the case of Boston Deep Sea Fishing Vs Ansell (1888) L.R
39 Ch D 339, a managing director of the company was summarily dismissed on
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inadequate grounds, but later found to have been taking bribes, a breach of his duty
of good faith and thus a fundamental breach of the contract

b) Disclosure of misconduct
In Bell Vs Lever [1932] AC 161 the H.O.L held that an employee is not under a
duty to disclose his or her own wrong to the employer, the contract of employment
imposes a duty of good faith, but it is not a contract of at most good faith
(uberimae fidei).This position narrowed by Sybron Vs Rochem (1983) IRLR.253 ,
where an employee was the manager of the European operations of the company.
Shortly after he took a generously compensated early retirement, it was found that
in conspiracy with several other employees he had been systematically defrauding
the company for years by diverting business opportunities to a rival company
which he had set up. The C.O.A held that he was in breach of duty to disclose the
wrongdoing of his subordinate even though that would inevitably have led to his
own misconduct being revealed
c) Competition
The implied duty of fidelity operates to prevent a servant either from setting up
competition with his master or going to work for a rival company as long as the
employment subsists. In Sybron Vs Rochem the misconduct consisted setting up a
competing company and expropriating business which should have gone to the
employer.
The mere fact that the employee is intending to leave and set up in competition
involves no breach of good faith duty, even though many employers may regard it
as disloyal.
In Laughton Vs Bapp Supplies (1986) LCR.634, two young men working in a
supplies department in a fairy junior capacity wrote to suppliers of their employer
outlining their intention to set out on their own and asking for details of their
products and prices. When their employer heard of it, he immediately dismissed
them. It was held to be unfair; they were not in breach of duty of good faith by
intending to compete. It would have been otherwise if they had been accumulating
confidential information or trying to steal employer’s customers.
Thus in the case of Wessex Diaries ltd Vs Smith [1935] 2 KB 80, the question
was whether the defendant acted with fidelity when, on the Saturday in question
and perhaps on the previous day of the week, in going around informing customers
that he would cease on Saturday to be in the employment of the of the plaintiff that
he was going to set up a business for himself and would be in position to supply
them which with milk. Maughsn J said that he was plainly soliciting customers as
from Saturday evening a time when the defendant was under an obligation to serve
the plaintiff with fidelity and that he committed a breach of the implied contract.

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Once the employee has left the employment, there is of course no implied term that
he/she may not compete. However, employers frequently try to limit possible
competition from former employees by inserting restraining of trade clause into
contracts of employment. The validity of which will be addressed

d) Confidential information
Misuse of confidential information is a major concern for employers not only in
relation to the existing employees but also those who have left. The leading
authority on how far the employer can protect confidential information is
Faccenda Chicken Vs Fawler and others [1987] CH 117, the ex- employee had
used a package of sales information i.e. a list of customers, the delivery routes, the
customer’s usual requirements, the times of deliveries, and pricing policy, the
C.O.A held that there were two types of confidential information. The first kind
consist of trade secrets, or information of a high confidential nature that it should
be treated as if it were a trade secret , the employee can be restrained from using
this even after leaving employment. The second is information which is
confidential in that it would be a breach of duty of good faith for the employee to
use it for his or her own purpose, or disclose it to someone else while employed,
but which he or she would be entitled to use after leaving

e) To take care not to damage the relationship of trust and confidence that
should exist between an employer and an employee
This requirement is one that falls on both the employer and the employee. The
issue of trust and confidence is seen to be right at the heart of the contract of
employment. If there is no trust and confidence, there can be no successful
relationship.
Isle of Wight Tourist Board v Coombes (1976) IRLR 413
Mrs Coombes was personal secretary to the director of the board. She resigned
when in her hearing; the director said to a fellow employee “she is an intolerable
bitch on a Monday morning”. Her unfair dismissal claim was upheld by the
industrial tribunal.
Per Bristow J; “the relationship between somebody in the position of the director
of this board and his personal secretary must be one of complete confidence. They
must trust each other; they must respect each other. I suspect one should go further
and say that, if the work is to be done properly, they must like each other”
Malik v BCCI SA (1997) IRLR 462
In litigation arising out of the collapse of BCCI, the house of lords decided that the
employee’s contracts contained an implied term that the bank would not without
reasonable and proper cause, conduct itself in a manner likely to destroy or
seriously damage the relationship of confidence and trust between employer and

Page 25 of 59
employee. That the obligation has its origin in the genral duty of cooperation
between contracting parties

f) Fidelity; (faithfulness).
There is supposed to be in built trust between employer and employee.
This implied term comes from the British case Secretary of State for Employment
v. ASLEF (No. 2), [1972] 2 ALL ER 949 . There, train drivers who were upset
with their working conditions protested by methodically complying with their
contractual requirements, that is to work strictly in accordance with their contracts
of employment, which ironically resulted in the rail system being rendered
effectively inoperable.
The court found that the train drivers’ behavior violated an implied term of their
employment. As Lord Justice Berkley explained:…an employee must serve the
employer faithfully with a view to promoting those commercial interests for which
he is employed.
That the instruction to ‘work to rule’ was an instruction to the union members to
break an implied condition of their contracts of employment for (per Lord
Denning MR) although the rules were not part of the members’ contracts of
employment, they had to be construed reasonably according to the usual course of
dealing and to the way in which they had been applied in practice; the ‘work to
rule’ involved placing an unreasonable construction on the rules; if the rules were
operated in accordance with an unreasonable construction and with the object of
wilfully disrupting the board’s undertaking that was a breach of contract (per
Buckley LJ) the contract of employment was entered into as part of the board’s
commercial activity; the wilful act of one party to a contract of a commercial
character which defeated the commercial intention of the parties in entering into it
constituted a breach of the implied term in the contract to perform the contract in a
way that did not frustrate that commercial object; the instruction to ‘work to rule’
struck at the foundation of the consensual intention of the parties; it amounted to
an instruction to commit a breach of the implied term to serve the employer
faithfully with a view to promoting the commercial interests for which the
employee was employed
This principle extends to conduct outside the workplace that has a detrimental
effect on an employer’s commercial interests.

Hivac Ltd v Park Royal Scientific Instruments Ltd

The appellant company manufactured thermionic valves, including midget valves
for incorporation in hearing aids for the deaf. The making and assembling of these
midget valves required considerable skill. The respondent company, a newcomer
in this particular field, manufactured not merely thermionic valves for use in

Page 26 of 59
hearing aids but complete hearing aids embodying thermionic valves. The
appellant company had amongst its employees, five manual, though highly skilled,
workmen, who had been in the company’s employ for several years on a normal 5
1/2 day week agreement subject to 24 hours notice. Sunday was a free day without
the knowledge and consent of the appellant company, these five employees, at the
invitation of two directors of the respondent company and two former employees
of the appellant company, worked, on Sundays, for the respondent company, for a
considerable period, at the task of assembling midget valves. There was no
evidence that these five employees had made use of any confidential information.
Hivac applied for an injunction restraining the respondent company from
employing or procuring these employees to be employed by them,
Held – (i) The appellant company had made out a prima facie case of breach of the
employees’ obligation to serve them with good faith and fidelity, which was an
implied term in the contract of service.. the injunction was granted.
Lord Greene Mr; “it has been said on many occasions that an employee owns a
duty of fidelity to his employer. As a general proposition that is indisputable. The
practical difficulty in any given case is to find exactly how far that rather vague
duty of fidelity extends. Prima facie it seems to me on considering the authorities
and the arguments that it must be a question on the facts of each particular case. I
can very well understand that the obligation of fidelity, which is an implied term of
the contract, may extend very much further in the case of one class of employee
than it does in others”

In contrast was the case of Nova Plastics Limited v Froggatt [1982] I.R.L.R. 146).
where the court of appeal upheld an unfair dismissal claim after an employee was
dismissed after the employer found out he was working for a competitor. The court
of appeal concluded that 'the nature of the work the employee did was not
something that could contribute very seriously to any competition and that the
employee was not in breach of the duty of fidelity.'
This fidelity extends even to after the contract of employment. The employee
should not engage in competition with the employer, using secret information of
the business.

Restraint of trade; v Constitutional provisions

Restraint of trade clauses are express terms, which directly or indirectly seek to
restrain an employee from damagingly competing with the employer during, but
mainly after employment.
On the right to practice your profession, it must meet the test of reasonableness for
the protection of the employer’s proprietary interests and must be generally in the
public interest.

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Littlewoods Organisation Ltd v Harris (1978) 1 ALL ER 1026
The plaintiff ran a retail chain store business and mail order business in the UK.
The main rival in the field was GUS which had some 200 subsidiary companies
carrying on business throughout the world. The defendant was executive director
of the plaintiff. His service agreement contained a restrictive clause that on
determination of the agreement … the [defendant] shall not at any time within
twelve months after such determination: — (i) Enter into a Contract of Service or
other Agreement of a like nature with Great Universal Stores Limited or any
company subsidiary thereto or be directly or indirectly engaged concerned or
interested in the trading or business of the said Great Universal Stores Limited or
any such company aforesaid. However, On 4 January 1977 he wrote to the
plaintiffs tendering his resignation and informing them that he had accepted an
offer of employment from the GUS group. The plaintiff’s sought an injunction
restraining his entry into employment with GUS.
Held;
On the evidence the defendant had acquired in the course of his employment with
the plaintiffs much information of a confidential nature about the mail order side of
their business. The plaintiffs were therefore entitled to the protection of a
reasonable covenant restraining him from going to work for a rival in the mail
order business within a limited period after he had left their employment.
Injunction granted.
Lord Denning said that it is just because there may be serious difficulties in
identifying precisely what is or what is not confidential information that a non-
competition clause may be the most satisfactory form of restraint, provided that it
is reasonable in time and space. Such a covenant may well be held to be reasonable
if limited to a short period.
there may be situations where the identification of the confidential information
which the employee may not use even after termination of her employment is so
difficult that the employer may seek to resolve the problem by getting the
employee agree not to work for rival firms after leaving, or not to set up in
competition on his own account. Such a contract is in restraint of trade.
The courts look to the substance of the clause, not its form. A clause may read, ‘the
employee agrees that he will not solicit persons who have been clients of the
company within two years preceding termination for six months after such
termination; or’ the employee covenants that she will not disclose or use any
confidential information belonging to the company; or ‘the employee agrees that
he will not work in any business competing with that of employer within a radius
of five miles from a specific place.’

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Greer v Sketchley Ltd: [1979] IRLR 445,
The plaintiff, a former senior employee of the company had requested the court to
say whether a post-employment clause restraining him working from a competitor
in the whole of UK was valid. The employer now appealed.
Held: The appeal failed. The clause was too wide, restraining the former employee
working for a competitor anywhere in the UK.
Lord Denning MR said: on that short ground (but it is a decisive ground) of
geographical area it seems to me that this covenant is too wide and is on that
account invalid, and I would support the judge’s judgment on the simple ground on
which he made a declaration that the covenant is invalid

The Courts strictly interprete restrictive covenants and its therefore not their duty
to correct errors or omissions in them but to give effect to them as specifically
drafted.

A covenant/ term in restraint of trade will be enforceable if it complies with

certain conditions as shown below:
(i). Employers may protect only legitimate proprietary interests . These include:
trade secrets, customer connections and a stable work force among others: Alliance
Paper Group Plc v Prestwich (1996). An employer cannot gain protection from
competition per se. Also an employee cannot be restrained from using his own skill
and knowledge even though that skill was learnt from the employer.
In the case of Herbert Morris Ltd v Saxelby (1916) 1 A.C 688, Saxelby was an
engineer whose contract of employment contained a clause whereby he would not
work for any competing company for a period of seven years after the termination
of his contract. It was held by the House of Lords that the clause could not be
enforced. It amounted to a restriction on the skill and ability he had gained, rather
than a safeguard of the company’s interests.
In considering trade secrets, court will take into account the nature of information
held by the employee and the level of his position within the company. Also, trade
secrets do not include: the employee’s skill and knowledge; information which is
publicly available; or knowledge of general methods of running business.
In the case of Forster & sons Ltd v Suggest (1918) 35 T.L.R 87, Forster was the
production manager of a company involved in the competitive industry of glass
making. As production manager, he was privy to many of the company’s trade
secrets, and his contract of employment contained a clause restricting him from
working for a competitor for a five-year period after termination of his contract.

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It was held that because of the secret nature of the manufacturing processes
involved, and Forster’s level within the company, the clause was enforceable.

(ii) A restraint is valid only if it is reasonable between the parties and is in the
interests of the public. The question whether a restraint is invalid as being
unreasonably excessive depends on the nature of the business to be protected. The
burden of proof of reasonableness is on the employer, and as to whether it is
against the public interest will depend on the discretion of the judge but the party
who alleges that the term is against public interest has to prove so.

Reasonable between the parties

Restrictive covenants must be reasonable in terms of scope, length of time and
geographical area, among others. What is reasonable is a question of fact. The
clause must not give the employer more protection than is necessary. In other
words, the restraint is only valid if it goes no further than is reasonably necessary
for the protection of the employers’ interest. Here, courts attempt to balance
between the interest of the employee to be employed in the future as he wishes and
the employer’s interest to preserve his business from disclosures by an ex-
employee.
If six months is sufficient to protect a hairdressing establishment, two years will be
too broad, and the clause will fail. Similarly, if an area of 250 yards round the
salon would protect a hairdresser in a suburb, a covenant covering the whole town
is too expansive as was stated in the case of Mason V Provident Clothing &
Supply Co. Ltd [1913] AC 724. Where the restrictive covenant is too wide, court
may sever the unreasonable part and enforce the rest but only if something
intelligible is left after striking out the offending part. If however, the term is
indivisible, severance will not be possible and so the whole term will fail if it
contains elements of unreasonableness as was illustrated by the case of Sten house
Australia Ltd v Phillips [1974] 1 ALL ER 117, Attwood v Lamont [1920] 3 K.B
571. Where an employee is wrongfully terminated, the restrictive covenant cannot
be enforced against him even though it is reasonable.
Public Interest
The clause must also be in the interests of the public, that is, it is in no way
injurious to the public. Here, it is irrelevant that the detriment to the employee
imposed by the covenant is out of proportion to the benefit to the employer,
because the fact that the clause is unenforceable is not to protect the employee, but
because it is against public policy.
Breach
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The restrictive clause must cover the alleged breach by the employee. For example,
a clause preventing a person from carrying on a competing business does not stop
him from being an employee or director of a competing company.
Remedies
If the restrictive covenant/ term is enforceable, employers can claim at full trial
both damages to compensate for past loss (for example, solicitation of clients) and
a permanent injunction to stop further future activities in contravention of the
clause. An Interlocutory Injunction may also be granted before full trial if the
situation permits

EMPLOYMENT LIABILITIES
The common law and the various statutory provisions governing liability in the
workplace impose a heavy burden on employers not only to ensure the safety of
their workforce but also their employees during the coarse of their employment.

Liability only arises under the main three aspects highlighted below;
1. Breach of the Common Law duty imposed on employers. An employer owes a
non-delegable common law duty of care to their employees, thus may be
personally liable for harm caused to their employees.
2. Breach of Statutory duty imposed on the employer by a statute. An employee
who suffers an injury during the coarse of his/her employment, can bring an action
under the tort of breach of statutory duty.
3. Vicarious Liability. An employer may be held vicariously liable for injuries
caused by employees during their coarse of employment.

a) BREACH OF THE COMMON LAW DUTY IMPOSED ON

EMPLOYERS.
Common law imposes a duty of care on employers to ensure that their employees
are in a good and sound working environment. Under Article 40(1)(a) of the
Constitution of Uganda that every person at work has a right to work under
satisfactory, safe and healthy conditions.
It is important to note that, a common law duty upon employers is interspersed or
contained in any case within a statutory provision. For this reason, a claim is often
a mixture of both common law and statutory law, pleaded as alternatives. For
example, the different common law duties imposed on employers are also provided
for under the Occupational Safety and Health Act, the Worker’s Compensation Act,
Cap. 225, and the Employment Act, 2006.
Is the Common Law duty a non- delegable duty?

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The general rule is that an employer cannot delegate his or her duty imposed by
common law to ‘take to care of his or her employees’ to any person.
According to Vivienne Harpwood in her book, Principles of Tort Law, “…….the
duty on the employer is so onerous that it cannot be delegated to anyone else. Such
duties are described as ‘non-delegable’ duties, and arise in circumstances when
there is a duty imposed by statute or common law to see that care is taken, rather
than the ordinary duty to take reasonable care.”

Under what circumstances can non-delegable duties arise?

In the book of Vivienne Harpwood, Principles of Tort Law, Forth Edition,
2000, Cavendish Publishing Limited,
a. By Statute. Statutes sometimes place non-delegable duties upon
employers, and such duties cannot be delegated by the employer.
b. Common law: Ultra-hazardous activities: Activities which are
dangerous in character carry special responsibility for the person who
ordered them to be undertaken. So it is not possible to delegate such
duty if anything goes wrong.
c. Common law: Activities in public places: The duties on the
employer cannot be delegated in respect to activities carried out in
public places.
d. Common law: Bailments: Duties of bailees who are paid for their
work (bailees for reward) cannot be delegated unless the bailment
contract specifies that such duties can be delegated.
e. Common law: Activities on or adjoining a highway: Such duty
arises when there is a risk that work carried out on or adjoining the
highway causes highway nuisance

b) EMPLOYER’S BREACH OF STATUTORY DUTY

This is another form of liability through which an employer can be held liable
under tort law. Justice Christopher Madrama pointed out in the case of Microcare
Insurance v. Insurance Regulatory Authority of Uganda Civil Suit No. 684 of
2015. that, “An employee who suffers an injury during the course of employment,
can bring an action under the tort of breach of statutory duty.”
This means that injured employees may be able to maintain an action for breach of
statutory duty against an employer.
A civil action for the tort of breach of statutory duty arises indirectly where a
statute imposes a duty but does not give a civil remedy in the event of the breach.
One can therefore say that this is a area of tort of a hybrid between common law
and statutory law. The duty lies in the statute and the remedy lies in common law.
(emphasis mine)
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Thus in a Kenyan case of Kiamokama Tea Factory Co. Limited v. Joshua
Nyakoni [2015] eKLR, It was held that, “…breach of statutory duty is….the
breach of duty of care in tort...the statutory provisions are a legal imposition on
parties in a particular contractual relationship.” Also in the case of Dawson v.
Bingley Urban Council [191 ] 2 KB 149, Kennedy L.J stated at page 159 that,
“The proper remedy for a breach of a statute is an action for damages especially
where the statute lays no rule for non-compliance or breach…”

What amounts to breach of statutory duty?

For a person to succeed in an action for breach of statutory duty, he or she must
have a “cause of action.” This is because the breach of statutory duty is it’s self a
“tort” which is a civil wrong and the general rule under civil procedure is that the
plaintiff must have a cause of action in order to sue successfully. Order 7, Rule 11
of the Civil
Procedure Rules provides that, “a plaint which does not disclose a cause of action
shall be rejected by court.” In the case of Auto Garage v. Motokov [1971] EA
514., it was held that a plaint discloses a cause of action if the plaintiff had a right
and such right has been violated by the defendant.

So in order for an action for breach of statutory to be instituted against an

employer, the following elements must be proved in order for the claim to
constitute a valid cause of action;

1. Whether the statute intended to create civil liability;

It must be proved that the statute intended to create civil liability on the side of the
employer. In order to prove this, the court may look at;
i. The general context of the statute. Statutes made to operate for the
general benefit of the community will not usually create a civil
liability.
ii. The precise nature of the statutory provision.
Tort actions only arise if the wording of the statute is very precise. For example,
Section 19 of the Occupational Safety and Health Act is very clear that the
employer must provide adequate and suitable protective clothing and protective
equipment to the workers where “the level of air pollution and chemical
substances exceed the limits.” Therefore, it should be noted that were the wording
of the statute is precise to the extent that no statutory duty is expressly imposed on
an employer, no liability arises. In the case of Atkinson v. Newcastle Water Works
[1877] 2 ExD 441, no civil action was available where the statute imposed a fine of
10 pounds for failing to keep water at a certain pressure.
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The claimant’s premises had caught fire and burned down but, despite the breach
of the statutory duty, the court held that, the mere fact that the breach of a public
statutory duty caused damage, does not vest a right of action…..whether the breach
does or does not give such right of action must depend upon the object and
language of the particular statute and in this case the wording of the statue was not
precise and thus no liability could arise.

2. Whether the statutory duty was owed to the particular claimant;

The plaintiff must prove that the statutory duty was owed to him or her as an
individual.
No claim must be brought by the claimant outside the statutory relationship.
Under Section 3(1) of the Worker’s Compensation Act, it is clear that the statutory
duty is owed to a worker who gets injured during his/her coarse of employment.
This provision provides for compensation by the employer. In the same vain,
Section 19 of the Occupational Safety and Health Act provides that the worker or
employee owes a duty to the employer to be provided with protective clothing and
protective equipment at work, and breach of such duty may lead to liability on the
side of the employer. Thus in the case of Hartley v. Mayoh and Co. [1954] 1 QB
383, a fireman was injured in a fire at a factory.
His claim for damages failed. No duty was owed under the industrial safety
provisions on which he tried to rely since the fire was not at his place of
employment which the wording of the statute provided for. Also in Hewett v. Alf
Brown’s Transport [1992] 1 CR 530, here the wife of a lorry driver contracted
lead poisoning through washing her husbands’ overalls. Safety regulations did not
create a duty of care in favour of employees such as the lorry driver here.
Nevertheless the duty could not be extended to cover the wife in the case.

3. Whether the statute imposed the duty on the defendant;

The words used in the statute must be strictly interpreted to find out whether the
defendant in issue had a duty under it. Civil Liability only arises if the statute
imposes a duty on the defendant.
For example, Section 3(1) of the Government Proceedings Act imposes liability
on government in respect of any breach of those duties which a person owes to his
her employer at common law. From the wording of this statutory provision, it is
clear that the Government Proceedings Act imposes a duty on the government not
to breach the duties it owes it’s servants at common law. So in case the
government breaches such duties, the affected servant can lodge a claim since it is
clear that the statute imposes the duty on the government. In the case of R v.
Deputy Governor of Parkhurst Prison, Exparte Hague [1992] 1 AC 58, where a
claim by prisoners that civil law rights were infringed was rejected. The prison
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rules were passed for the purposes of regulating the administration of prisons not in
any way to impose duties on prisons that would operate in favour of prisoners.

4. Whether the defendant was in breach of the duty;

It must be proved that the defendant was in any case in breach of the duty imposed
by the statute. Here liability is “strict” and it depends on the wording of the Act
and its interpretation. For example, it is clear under Section 19 of the
Occupational Safety and Health Act, that the employer has a duty to provide
workers with protective clothing and protective equipment at work. So any breach
of this statutory provision by the employer leads to liability. In the case of
Nsubuga Tonny v. Spencon Services Company HCT-00-CV-CS-0013-2014,
where the plaintiff sustained injuries when a hot bitumen pipe burst and hot tar
poured on his neck, face, mouth, ears and chest. The plaintiff argued that the
defendant had a duty to provide proper industrial protective wear. The court held
that the defendant had a legal duty to provide the plaintiff with protective industrial
clothing and failure to do so resulted into negligence.

However, in circumstances were the defendant is not in breach of the duty, no

liability arises. In Chipchase v British Titan Products Co Ltd [1956] 1 QB 545,
the defendant’s injury was sustained when he fell six feet to the ground from a
nine-inch wide platform. The regulations required that platforms over six inches
from the ground should be at least 34 inches wide. The specific wording of the
provision was not breached and there was no possible action.

5. Whether the damage caused to the claimant due to the defendant’s breach of
the duty was the type of damage which was contemplated by the Act;
The plaintiff must prove that the damage was of a type which was contemplated by
the Act. For example, Section 27(1) of the Worker’s Compensation Act only
requires for compensation by the employer only for the diseases scheduled in the
Act which may cause disablement or death of the worker, which may have been
contracted due to the nature of the worker’s employment. By virtue of Section
27(1) of the Worker’s Compensation Act, it is clear that the damage MUST be a
disease scheduled under the third schedule of the Act, and thus any disease which
is not in the third schedule cannot lead to any cause of action and thus a person
cannot claim for breach of statutory duty. (Emphasis mine)
Thus in the case of Young v. Charles Church (Southern) Ltd [1997] EWCA Civ
1523, a claim was possible because nervous shock which was suffered by the
claimant was a type of damage contemplated in the Construction (General
Provisions) Regulations 1961.

Page 35 of 59
 6. Was the injury caused by the defendant’s breach of duty?
It must be proved that the injury was caused by the defendant’s breach of duty.
Horpwood in her book, The principles of Tort Law43 argues at page 184 that;
“If the statutory duty is not absolute, there will be a defence….for example if a
safety precaution is not provided but the claimant would not, on a balance of
probabilities, have made use of it even if it had been available.”

DEFENCES AGAINST A CLAIM FOR EMPLOYER’S BREACH OF

STATUTORY DUTY;
Nevertheless, an employer who has been sued by an employee for breach of
statutory duty may negate his/her liability through the following defenses;
a. Volenti non fit injuria;
Although this may not be usually available in employment cases, it may be pleaded
in only two situations namely; 1) Where the claimant’s wrongful act puts the
defendant in breach, and 2) where the claimant tries to claim the defendant’s
vicarious liability as an issue.
b. Contributory Negligence;
In case the employee contributed to his or her injury through his/her negligence,
the employer may not be liable.
c. Duty not absolute;
If the statutory duty is not absolute, there will be a defence. This takes place if the
duty was not absolute and the claimant would not have made use of safety
equipment even if it was provided. For example if a safety precaution is not
provided but the claimant would not, on a balance of probabilities, have made use
of it even if it had been available.
C) VICARIOUS LIABILITY IMPOSED ON EMPLOYERS.
In the course of their duty, employees are bound to interact or come into contact
with third parties, sometimes with negative effects. This could arise from
misjudgment, complete abuse of office, or neglect of instructions. These acts are
attributed to the employer because of the latin maxim quid facet per alium facit per
se, (he who acts through another acts for himself). The effect of the maxim is that
the employer owns the acts of the employee.
These enunciate the doctrine of vicarious liability were the acts of a master are
attributable to the servant. Muwonge v Attorney General (1967) EA 17
The appellant’s father was killed during a riot. The shot which killed him was fired
by a policeman who had seen the appellant run towards a house, had concluded
that the appellant was a rioter and, having followed him, fired wantonly into the
house not caring whom he killed or injured. At the time, stones were being thrown
and shots were being fired nearby.

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Held – the firing of the shot was an act done within the exercise of the policeman’s
duty for which the Government of Uganda was liable as master, even though it was
wanton, unlawful and unjustified.
Per Newbold P: An act may be done in the course of a servant’s employment so
as to make his master liable even though it is done contrary to the orders of the
master; and even if the servant is acting deliberately, wantonly, negligently or
criminally, or for his own benefit, nevertheless if what he did is merely a manner
of carrying out what he was employed to carry out then his master is liable

In vicarious liability, there must be an employee-employer relationship and the

negligent act Prima facie, an employer is responsible for the acts of an employee.
Where there is no employer-employee relationship, then the employee is an
independent contractor. Arguments of an employer being on a floric of his own
have been defeated by the principle of reasonable deviation.
An employer will only be liable for the torts of their employees if they are
committed during the course of employment rather than, as the courts put it, ‘on a
frolic of his own' (Storey v Ashton). This is another area of vicarious liability that
the courts have found particularly difficult to agree on. The traditional test for
determining this is the Salmond test which states that a tort will be committed in
the course of employment if it is either (a) a wrongful act authorised by the master,
or (b) a wrongful and unauthorised mode of doing some act authorised by the
master. In Hilton v Burton (Rhodes) Ltd (1961) 1 ALL ER Lord Diplock J “it
was not within the course of their employment for a group of workmen to travel 7
or 8 miles from their work side for tea immediately after finishing lunch”
Century Insurance Co. Ltd v Northern Island Transport (1942)1 ALL ER 91.
He lit a cigarette in the process of delivering fuel. The question was whether he
was in the ordinary course of business. The test of a reasonable employee was
employed by the House of Lords where he wasn’t expected to light a cigarette near
petroleum well knowing that it’s flammable

It should be noted that the principle of Vicarious liability extensively covers the
doctrine of “Respondeat Superior”, which means, let the master respond!. It is
also, in varying forms, applied in many European countries (Smith, Frolic and
Detour, 23 Colum, L. Rev 444, 452-3 (1923); Neuner, Respondeat Superior in light
of Comparative Law, 4 La.L. Rev. 1 (1941).
The doctrine of “Respondeat Superior”.
Respondeat Superior is a legal doctrine which states that, in many circumstances,
an employer is responsible for the actions of employees performed within the
coarse of their employment. In a broader scope, Respondeat superior is based upon
the concept of vicarious liability.
Page 37 of 59
This doctrine holds that an employer, officer, manager, supervisor, or other
individual superior to an employee may be legally liable for the acts of the
employee. (Emphasis mine)
The basic rule is that, this doctrine only applies were there is a valid existence of
the
“Employer-Employee relationship.” Thus the Court of Appeal of Uganda in the
case of
Security 2000 Ltd v. Cumberland Civil Appeal No. 0916 of 2014 and African
courts at large stated at page 7 that;
“Employer-Employee relationship falls under the doctrine of respondeat superior.
This doctrine holds employers to be responsible for the lack of care on the part of
employees to whom the employers owe a duty of care. In applying the respondeat
superior doctrine, the employee’s negligence must occur within the scope of
employment.”
In a Nigerian case of Joseph v. Office of Consulate General of Nigeria [820F,2d
1018 (9th Cir. 1987)], the court stated at page 7 that;
“Under the respondent superior doctrine, the determination of whether an
employee has committed a tort during the coarse of employment turns on whether:
1) the act performed was either required or incident to his or her duties, or 2) the
employee’s misconduct could be reasonably foreseen by the employer.”

WHEN IS AN EMPLOYER HELD VICARIOUSLY LIABLE?

The general rule under civil procedure is that for a person to successfully institute a
civil action, he or she must have a cause of action. Order 7, Rule 11 of the Civil
Procedure Rules, gives life to this by providing that, “a plaint which does not
disclose a cause of action shall be rejected by court.”
Therefore, for a person to successfully argue that an employer is vicariously liable
for the torts committed by his or her employees, he or she must prove some legal
elements which constitute the tort of vicarious liability, and this therefore gives rise
to a valid cause of action.
As a matter of law, three conditions must apply for an employer to be vicariously
liable for the acts of the employee;
a. The worker must be an employee within the ambit of the law,
b. The employee must have committed a wrong or tort,
c. The employee must have been acting within the courrse of his or her
employment.
Each of the above legal aspects is considered below;

The Employee must have committed a wrong;

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For the employer to be vicariously liable, his/her employee must have done an act
or conduct which constitutes a civil wrong or tort. So whether or not the employee
has committed a wrong is assessed in the normal way by applying the elements of
the wrong to the facts of the case. For example, in a negligence claim, a court
would determine whether or not the employee owed the claimant a duty of care,
whether the employee had breached that duty, and whether the employee had
caused damage to the claimant which was not too remote

The worker must be an employee of the employer;

For the employer to be held vicariously liable, the employee must be a valid
worker of the employer, within the ambit of the law. In order to determine this,
three broad tests are employed by court to determine whether a worker who
committed the tort is a valid employee of the employer

Courrse of Employment: The employee must have been acting within the coarse of
his or her employment;
An employer will only be liable for the torts of their employees if such torts are
committed during the employee’s coarse of employment. This means that torts
committed by employees on a frolic of their own cannot render the employer
liable.
What is the difference between “Employee’s Coarse of Employment” and “Frolic
of
Employee’s own”? Course of employment. In Muwonge v. Attorney General
(supra), the government was held vicariously liable on grounds that the shooting
took place when the officers were in the course of their employment.
Frolic of employee’s own. The phrase “Frolic of one’s own” is used to describe
conduct that falls outside of the course of employment because it is something that
the employee has done within the working time but it is unrelated to his work and
is undertaken on his own account.(Emphasis mine). For example in the case of
Namwandu v. Attorney General [1972] EA, the court held that at the time of the
accident i.e shooting of the deceased, the soldiers were acting on frolic of their
own and not within the course of their employment and therefore the government
was not vicariously liable.

How do courts determine that the employee was acting within the course of
employment or on frolic of his or her own?
As a matter of law, there are two situations which are accepted as falling within the
scope of coarse of employment;
Acts by the employee that are authorized by the employer;

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If the employee is following the instructions of his/her employer, and in the event
he or she commits a wrong, the employer is held liable. The law requires that the
employer’s authorized acts leading to a wrong committed by an employee are
attributed to the employer vicariously. See Muwonge v Attorney General (supra)

Authorized acts done in an unauthorized manner;

This covers a range of situations such as acting contrary to instructions or
performing an authorized task in a negligent manner. Here, the employer may still
be vicariously liable for the acts of the employee. In Muwonge v. Attorney
General (supra),
Newbold, P stated that,
“The master remains so liable whether the acts of the servant are negligent or
deliberate or wanton or criminal….the acts may be so done even though they are
done contrary to the orders of the master.”

Difference between employees, independent contractors, and agents within the

ambit of the law relating to vicarious liability
It is important to distinguish between employees, independent contractors, and
agents while determining the liability of employers under the doctrine of vicarious
liability.

Difference between Employees and Independent contractor;

Employers are liable for the acts of their employees, but not for acts of independent
contractors.
Broadly speaking, an independent contractor is usually a self-employed individual
who is hired by another business to work on a particular project. (Emphasis mine).
“Independent contractors’ provide for their own equipment and hire any
additional help they need, while ‘employees’ usually have their equipment and co-
workers provided by their employer.”

Difference between employees and Agents;

An “Agent” is one who is authorized to represent another person(Principal) in
dealings with third parties. The acts of agents are treated as if they were the acts of
the principal. This raises the possibility of the principal being liable for the torts of
the agent. The scope of the agent’s authority is much the same way as is the coarse
of a worker’s employment. For example; if an agent is fraudulent, such fraud can
be attributed to the principal and thus the principal will be liable for the resulting
harm.
In the case of David Sejjaka v. Rebecca Musoke Civil Appeal No. 12 of 1985, it
was held that, the fraudulent acts of an advocate hired by a person to be legally

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represented, are attributed to the person who hires the advocate by virtue of
Agency law because, the actions of the agent(advocate) are attributed to the
principal(Hirer)

Occupier’s liability;
The tort applies to people who enter the premises of the employer whether invited
or not invited.
Duty of care under occupiers liability applies to both premises and equipments and
more so under the production industry. The employer is expected to provide
protective gear and impart skills to the employees including new technologies.

TERMINATION OF THE CONTRACT OF EMPLOYMENT

Termination of an employment under Section 2 Employment Act, 2006 to the
discharge of an employee from an employment the initiative of the employer for
justifiable reasons other than misconduct such as expiry of contact, attainment of
retirement age.
Dismissal from employment under section 2 of the Employment Act, 2006
means discharge of an employee from employment at the initiative of his/her
employer hen the said employee has committed verifiable misconduct.

Suspension and interdiction.

Disciplinary penalty.
The employer is entitled to impose a disciplinary penalty whenever it is reasonable
to do so in the particular circumstances such as suspension or interdiction
whenever it is reasonable to do so in reasonable circumstances.
Section 62 Employment Act, 2006 gives such powers to impose disciplinary
penalty other than dismissal. Such grounds for disciplinary penalties are neglects,
failure or alleged failure on the part of an employee to carry out his or her duties
under his/ her contract of service; it may be a written warning, reprimand and
suspension from work. The employee shall not be suspended from work for more
than fifteen days in a six months period except where the employer fails to impose
a disciplinary action within 15 days after becoming aware of the occurrence giving
rise to disciplinary action shall be deemed to have waived that right to do so.

The employees are guaranteed natural justice of a progressive approach to

disciplinary action as enshrined in Part (F - s) The Uganda Public Service
Standing Orders, 2010, and Part IV of The Public Service Commission
Regulations, SI No.1of 2009 such as;- a formal warning, a final written warning,
being informed of the reasons for such an interdiction, ensuring that the
investigations into his conduct were done expeditiously, in any case within six
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months, receiving salary, not being less than half of his basic salary, subject to a
refund of the other half, in case the interdiction was lifted and the charges are
dropped, a hearing before the District Service Commission after a full
investigation, and so on.
Suspension:
This refers to the act of temporarily delaying, interrupting or terminating the
employment contract between the employer and employee by the employer.
Section 63 Employment Act, 2006 is to the effect that this may be done during a
period when an employer is conducting an inquiry which he or she has reason to
believe may reveal a cause for dismissal of an employee with a half pay.
This shall not exceed four weeks or the duration of the inquiry which is the shorter.
This takes form of unilateral suspension on by reason of fact that an employer has
all powers it needs to manage its undertaking properly and protect the interests of
undertaking, it follows that an employer has an unilateral powers to temporarily
suspend the effects of an individual contract of employment or certain obligations
under the contract subject to the limits by the law.
Thus in the case of national trading corporation V Mosses Kityo [1972] HCB
75 Musoke J held that
“The suspension clause may act in two ways, it may be a merciful substitute for
the procedure of dismissal and a possible re-engagement, under the suspension
clause, the right to wages are not earned, the whole contract is suspended in the
sense has no operation of mutual obligation of both parties is suspended, worker
man ceases to be under any present duty to work and the employer ceases to be
under any present to pay. This is natural meaning of the word suspend when
applied to contract of employment”.
Therefore the employer’s power of unilateral suspension of contract of
employment is of the power of direction, the employee is deemed to accept as
embedded in the employer’s authority to make decision regarding the employee’s
performance of his/ her work which includes deciding not to have the work
performed.
As regards to payment of salary during suspension period, the employer has no
duty to pay the employee and he has the discretion either to pay or not to pay.
Thus in the case of National Trading Corporation. V M osses Kityo Musoke J
held that
“Where the contract is silent as to the whether salary would be paid during
suspension, the
employer had discretion to pay during suspension or otherwise”
Also in the case of Ddamulira V national Insurance Company [1972] HCB 187
Musoke J held that;-

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“…that as regards to payment of salary during any period of suspension,
suspension from wok was one of the unwritten conditions of the service applicable
to employee with or without pay. Once the discretion had been exercised, the
ended the matter, the legal position was that when an employer under terms of
service with his employee, employer had the powers to suspend any employee and
invoked that power, then during suspension period the whole contract is
suspended. The worker man ceases to be under any present duty to work and the
employer ceases to be under any consequential duty to pay”
The plaintiff was clearly entitled to 30 days’ notice or one month’s salary in lieu
when his service were terminated. He was also entitled to pay in lieu of months
leave. The claim for damage during suspension would fail.
Interdiction:
Interdiction is defined by Regulation 7 in Part (F - s) The Uganda Public
Service Standing Orders, 2010 as the temporary removal of a public officer from
exercising his or her duties while an investigation over a particular misconduct is
being carried out.
Also defined the case of Waga B. Francis v The Chief Administrative Officer,
Maracha, Maracha District Local Civil Suit No. 0005 of 2016 to mean a form
of suspension where an employee is prohibited from attending at office for the
performance of his usual duties.
The employer is usually asked to hand over office and effects to another officer or
head of department. During suspension, the officer receives half pay and be called
upon to appear before any disciplinary or a court of law.

This was illustrated in the case of Cheborion Barishaki V The Attorney

General HC Miscellaneous Application N0. 851 2004 this was an application for
certiorari, mandamus, prohibition and declaration to quash Solicitor General’s
decision to interdict the applicant pending investigations of the applicant. A
declaration that the interdiction was made contrary to principles of natural justice,
an order of mandamus requesting the respondent to allow the applicant to resume
his duties or office, general and aggravated damages. Katusi J held that;-
Regulation 6 of the Public Service Regulation grants power to the Solicitor
General to interdict the applicant
“where a responsible officer considers that public interest require that a public
officer ceases to exercise the powers and functions of his office, he/ she shall
interdict the officer from exercising those powers and functions if proceedings for
his dismissal are being taken or if criminal proceedings are being
instituted….where a person whether he is a military officer, a police office, or any
other person whose duty is to act in matters of discipline, it is most undesirable in
my opinion that he should be bettered by threats and orders of certiorari and so
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forth because that interferes with the free and proper exercise of the disciplinary
powers which he has” Expert Pritchard [195] 1 WLR 155
The above provision meant to protect public officers against unfair disciplinary
actions when looked at from the disciplinary perspective, the unexplained failure to
indict the plaintiff and accord him the pre and post interdiction procedural rights,
failure to fix reasonable period of suspension, the employer’s good faith is cast in
serious doubt. Good faith requires due care and attention and it consists of that
belief that a prudent and sensible man would hold in the ordinary conduct of his
own business affairs

TERMINATION OF EMPLOYMENT CONTRACT:

As already seen under The Employment Act, 2006, a contract of employment
imposes reciprocal obligations on the parties. The employer must provide and
allow the employee to perform the work agreed upon (s 40), pay the employee
remuneration (s 41), and take any necessary measures to protect the employee’s
health, safety and dignity (Part VI).
On the other hand, the employee is bound to carry out his or her work with
prudence and diligence and to act faithfully and honestly toward the employer
(implicit in s 62 of The Employment Act, 2006 as well as section 12 (c) and (d) of
The Public Service Act, 2008).
The relationship is one of subordination signified by the fact that the employee
agrees not only that the employer must make necessary decisions in the
undertaking’s interest but also that his or her own work must be performed in a
manner consistent with those decisions and with the guidance they provide, subject
to any express or implied agreements between the parties and this right can be
terminated by either party.

Accordingly under Section 65 Employment Act, 2006. of the Act termination of

employment contract is deemed to take place in the following circumstances:-
a) Where he contract of service is ended by the employer with the notice,
b) Where the contract of service being a contract for a fixed term or task ends with
the expiry of the specified term or the completion of a specified task and is not
renewed within a period of one week from the date of expiry on the same terms or
terms not less favorable to the employee.
c) Where the contract of service is ended by the employee with or without notice,
as a consequence of unreasonable conduct on the part of employer towards the
employee and
d) Where the contract of service is ended by the employee, in circumstances where
the employee has received notice of termination of the contract of service from the
employer but before the expiry of the notice.

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Right of employer to terminate the contract of employment
The employer has a right to terminate the employment contract and this right is
absolute and arbitrary in a sense that subject to notice requirement, the right may
be exercised at any time and reasons for its exercise are relevant. This right is
explained in the following
cases.
In Ridge V Baldwin (1964) A.C 701 L Reid said “it may be exercised for any
reason or for none”. Similarly in A.M Jabi V Mbale Municipal Council. [1975]
HCB 191 court observed that “it is inalienable right of the employer to dismiss the
employee” also in Shell (U) Ltd V George Ndyabawa SCCA 61 0F 2005
Tsekooko JSC “explained that the employer has a right to terminate the
employment of his employee at any time for any reason or for no reason at all. The
employer must do so in a manner warranted by the contract otherwise he will be
liable for damages for unlawful dismissal”.
In the case of Wilson Nuwemuguzi V NWSC SCC SCCA N0. 26/1993 Platt
JSC held that:-
“It is not necessary that the master, dismissing his servant for good cause, should
state the grounds for such dismissal and provided the good ground existed in the
fact, it is immaterial whether or not it was known to an employer at the time of
dismissal, justification od dismissal can accordingly be shown proof of facts
ascertainable subsequent to the dismissal or grounds differing from those at time.”
Termination can be with or without notice. It can be with or without a hearing. In
some cases, termination can even be summary.
The supreme court of Uganda has held in Barclays Bank of Uganda Vs Godfrey
Mubiru SCCA NO.1 of 1998 that; (Kanyeihamba JSC, as he then was);
“where a service contract is governed by a written agreement between the
employer and the employee, as in this case, termination of employment or service
to be rendered will depend both on the terms of the agreement and on the law
applicable”.
In Dennis Rogers Buwembo v Hutchins Cancer Research Institute in Uganda
the court elaborated on the circumstances that may lead to an employee or
employer legally terminating the contractual relationship between the two by
stating that
Generally speaking the contract will always provide for the exit of either of the
parties out of the contract. For as long as the exit clauses in the contract do not
conflict with the provisions of the Employment Act or any other law, the said
clauses if complied with, will form the legal termination of the contract.
Broadly speaking, an employer has an inherent right to dismiss an employee. And
courts, as held by OKELLO, J in Kayondo v The Co-operative Bank (1990) 1,
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K.A.L.R, 83 cannot order an employer to employ an employee when he or she does
not wish to. Court cannot declare that a contract between an employee and an
employer still exists in circumstances where the employer wants it terminated.
Such an order cannot be specifically enforced. Therefore, an employer can
terminate the contract of an employee at any time. Initially, an employer was not
even required to give reasons to the employee for dismissal

Although the general position is that a master may terminate the contract with his
servant any time for any reason or even for no reason at all, where the contract has
been reduced in writing, the parties are bound by its terms and the employee will
expect to be dismissed in accordance with the procedure as expressly agreed upon
by the parties or as implied by law. According to Section 14 (2) The Public
Service Act, 2008, public officers are to be disciplined and removed from the
public service only in accordance with laid down regulations and procedures.
However, it should be noted that most of the common law rules on termination of
contract of employment have been modified by statute in Uganda. It is therefore
pertinent to consider the extent to which common law rules of termination of
contract of service have been modified or reversed by the Employment Act N0. Of
2006 and how disputes are resolved.

Circumstances under which contract of employment can be terminated and these

are discussed hereunder:-

1. By agreement. The employment contract can come to an end through the

agreement
of the parties. This agreement can be embodied in the contract itself or it can be
reached at any time after the commencement of the contract. Birch and Humper v
The University of Liverpool [1985] IRLR, 165. Here, the University introduced a
retirement scheme under which any retirement could only take place with mutual
agreement of both employer and employee. Absence of such mutual agreement
entitled the employees to claim for redundancy payments. The appellants applied
for early retirement and it was granted. They then sued arguing that their
employment had been terminated by the employer alone and so were entitled to
redundancy payments. Court of Appeal held that an employee cannot be said to be
dismissed by the employer if the contract of employment has been terminated by
consensus or mutual agreement of both the employer and employee jointly.
Bank of Uganda v Fred William Masaba & 5 Ors (Civ. App. No. 3) 1993 Supreme
Court
Nuwemugizi v National Water & Sewerage Corporation (Civ. App. 26 of 1993).
In this case, the plaintiff was asked to voluntarily retire after attaining mandatory
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retirement age. He accepted to do so without any verbal or written protest, and
even took all his emoluments, retirement benefits and payment of 3 months in lieu
of notice. He later sued arguing that his employment had been unlawfully
terminated. Court dismissed the suit on the grounds that the plaintiff had
voluntarily retired which in effect was termination by consensus.
It is important to note that termination by mutual consent (meaning that there was
no dismissal for statutory purposes) is in general treated warily by tribunals and
courts because it is capable of completely undercutting employee rights since the
employee will be deemed to have voluntarily left employment. However, this
mode of termination still does exist

Similarly in the case of Wilson Nuwemuguzi V NWSC SCC SCCA N0. 26/1993
the court held that
“Voluntary retirement is an act on the part of the servant, which is especially
within his own will and interest. He cannot be forced to retire at will, it is an act
which the servant himself performs, and in normal circumstances, it would be best
significant in writing, but sometimes verbal statements would suffice”.

2. Frustration:
A contract is deemed to be frustrated under common law where its performance is
prevented by the occurrence of an act beyond making of the employee and where
such act is o over whelming that it could not be reasonably contemplated and such
as one that destroys the subject matter or renders performance impossible, such as
sickness, disability, collapse of employees business, insanity of the employee.
Thus in the
case of Kabuye V Kinaalwa Yakobo HCCC N0. 30/1999 Bamwine J explained
that the essence of the doctrines of frustration is that parties to a contract are
excused from further performance of their contract obligation. If some further
event occurs to their performance without default especially, so if further
performance is impossible, illegal or makes the contract radically different from
what was originally undertaken. The doctrine does not apply where the
performance simply become onerous or less profitable than originally anticipated.
For one to succeed in terminating the contract of employment, he/she needs to
show that act was beyond this/her control. Thus in the case of Ryde V Bushel an
Awelte [1967] EA 817 Sir Charles Newbold J held that “before plea can succeed, it
must be established that it was an act of God which prevented the performance or
which destroyed the results of performance. Nothing can be said to be an act of
God unless it is occurrence due exclusively to natural causes of so extra ordinary,
a nature that it could not reasonably have been foreseen and the results of which
occurrence could not have been avoided by any action which should reasonably
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have been taken by the person who seek to avoid liability by reason of the
occurrence”.

Examples of frustration:
Illness that changes the terms of the contract can render it frustrated. Thus in
the case of Condor v the Baron Knights Band Ltd (1966)1WLR the plaintiff
was employed by the defendants as the drummer. His contract required him to
perform seven nights a week, he fell sick and consulted a doctor who ordered him
to perform hence forth for a maximum of 4 nights per week. The defendants
refused to engage him for 4 nights a week and he sue for breach of contract. It was
held that there was no breach of contract since the contract had been frustrated by
the plaintiffs supervening incapacity.
In fact in the Employment Act of 2006, Section 55(1) (b) entitles the employer to
terminate the employee’s contract of service on complying with the terms of the
contract of service up to the time of termination of employment if at the expiration
of the second months, the sickness of the employee still continues.
Guidance on when the employee’s incapacity will be taken to frustrate the contract
was given in the case of Egg Stores v Leibovicci [1977] ICR 260 Employment
Appeals Tribunal (EAT) said the basic question as, has the time arrived when the
employer can no longer reasonably be expected to keep the absent employees post
open for him? The following considerations are relevant, the length of previous
employment (greater efforts should be made for a long serving employee); how
long the employment had been expected to continue (usually, but not always
indefinitely); the name of the job, the name, length, and effect of disabling event
(will the employee make a full recovery) is the period of absence relatively clear
cut?, the need for the work to be done by a replacement (rather than getting other
workers to cover it ), the risk of acquiring unfair dismissal or redundancy
obligations to a replacement, whether wages have continued to be paid (if so it is
so burdensome to continue hold the job open, but indicates a belief in the contracts
continuance ), the acts and statement of the employer (whether there has been
dismissal or not ), and whether, in all circumstances, a reasonable employer would
be expected to wait any longer before replacing the employee on a permanent
basis.
Apart from illness, or accident, the other common situation where frustration is
alleged is where the employee is sentence to a term of imprisonment. Section 84
(1) (e) Employment Act, 2006 an employee’s continuance service shall not be
regarded as broken where an employee is absent from work due to a sentence of
imprisonment for an offence unrelated to his or her work. In the case of Shepherd
v Jerrom [1987]QB 301 court held that:-

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“It was contrary to general principles that no one should profit from his own
wrongs to allow the employee to rely on his own wrong doing to improve his
position. It was thus held that a prison sentence of between six months and two
years was capable of frustrating an apprenticeship contract which had been due to
last for four years”.

3. Termination by notice:
Contracts of employment are usually drawn up to last indefinitely. But people
cannot be tied you each forever, and a t common law the rule grew up at that either
party could lawfully terminate contract of employment that reasonable notice is
given.
At common law, it is true that if reasonable notice to terminate contract is given,
then the contract is lawfully terminated and it follows that the employee has no
claim for wrongful ismissal and it does not matter whether the employee has done
with for a bad or arbitrary reason or indeed no reason at all neither does it matter
for how long the employee has been employed nor his record.

The period of notice under Section 58 Employment Act, 2006 shall be in writing
and shall be in a form of language that employee to whom it relates can reasonably
understand.
The notice which is required to be given by the employee or employer shall be at
least two weeks if the service has lasted more than six months but less than twelve
months, at least one month if the service has lasted at least twelve months but less
than five years, not less than two months if the service has lasted for at least five
years but less than ten years, not less than three months if the service has lasted for
ten years.
It should however be noted that the employment Act makes this mandatory to
comply with the notice requirement as the only fair way of ending an employment
contract.

Thus in the case of Rex Steward Jeffries Parker Ginsberg v Parker [1988] 1.
R.L. R 483-486 where it was held that:-
“notwithstanding statutory employment contract provision, if the parties agreed
upon a payment in lieu of notice for period shorter than that of stipulated the
employer is entitled to terminate the contract offering the payment in lieu of notice,
the right of the employer to terminate the contract of service whether by giving
notice or incurring the penalty of paying compensation in lieu of notice for the
duration stipulated or implied by the contract cannot be fettered by courts, the
employee is only entitled to compensation only in those cases where the period of
service is fixed without provision of giving notice”.
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The employee is entitled for payment in lieu of notice failure to comply with it,
thus in the case of Dr. Omona Kizito V Marie Stopes Uganda Labour Dispute
Claim. No. 033/2015 (Arising from HCT-CS No. 73/2015) the claimant was on a
fixed contract for 2 years. It was terminated unlawfully when the claimant still had
14 months to work in the contract and the contract was terminated without notice,
court held that the plaintiff was entitled to the payment in lieu of notice.

However under special circumstances, the law allows the employer to

terminate the contract of employment without to the notice requirement.
If the employer exercises his right in compliance with the contract terms or in
conformity with the Employment Act, such termination will not be regarded as
wrongful termination and these are here under;-
a) Payment in lieu of notice under section 58(5) Employment Act, 2006 this
applies that the employer has a duty to give notice of his intention to terminate the
contract so that the employee prepares himself / herself during that period and
looks for alternative employment. However, this is very dangerous to the
employers business especially depending on the nature of the business and position
or nature of work done by the employee in question.
It is possible that the employee may sabotage the employers business by rendering
substandard work, as the kick is dying horse. Secondly, the employee may get
chance to snatch business secrets or even to steal physical good, documents or
other variables.
Thirdly, they may snatch away some customers from the employer.
The law allows the employees to be given at least one half day off per week during
hours to look for an alternative employment and this means the employer will miss
the service during this time. For such conducts, employers always take shortcuts,
dismiss the employee and pay him or her such amount for remunerations as may be
equivalent to the notice and all such other allowances and benefits may be due and
free themselves from such employee at the earlier opportunity.
In the case of Kengrow industries ltd v C.C Chandra CACA 12/2000 /1/O1
Twinomujuni JA held that where the contract was oral and never reduced in
writing, and there is an overwhelming evidence that the employee is thrown out of
office without any notice and was never told of his fate until the judgment out of
court was in his favour, the contract is treated as one which is not terminated in its
lifetime. It must be deemed to have come to an end when its duration expired, the
duration of the contract in absence of clear evidence would be inferred from the
work permit.

This principle of notice is further explained in the case of Barclay Bank of (u)
Ltd V Godfrey Mubiru [1998-2000]SCCA N0. 1 OF 1998 the court held if the
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employee is the one in breach of employment terms and the employer terminates
the contract, the latter is not under any duty anything for the remaining period of
the contract even those cases where the period is not fixed.
The right of the employer to terminate the contract of service whether by giving
notice or incurring the penalties by paying compensation in lieu of notice for the
duration stipulated or implied by the contract cannot be fettered by the courts. The
employee is only entitled to compensation even in cases where the period is fixed,
the measure of damages in a case where notice should have been given and was not
is limited to the amount the employee would have earned under contract for the
period the employer could lawfully have terminate the contract.

However where the notice is to be given according to the contract, it must follow
that given stipulation. Thus Kanyeihamba JSC [1998-2000] SCCA N0. 1 OF
1998in his lead judgment held that, “where a contract of employment stipulates
that where party can terminate it by giving notice of specified period, such
contract can be terminated by giving the stipulated notice for the period. In default
of such notice by the employer, the employee is entitled to receive payment in lieu
of notice and where no period is stipulated, compensation will be awarded for
reasonable notice which should have been given depending on the nature and
duration of the employment”.

b) Termination on ground of gross misconduct Section 58 (1) (a) and 69

Employment Act, 200 summary dismissal. The law does not lean in favour of the
employee who is guilty of gross misconduct, it is understood that where the
misconduct of the employee is within the category of misconduct, the right to
termination notice is forfeited. In the case of Jet Speed air services Uganda ltd v
Tuwhaire Civil Appeal CA N0. 17/2000. Okello JA held that lack of require
experience for the job does not constitute misconduct, it may affect the employee’s
proficiency or competence by certainly is not misconduct. Misconduct connote
intentional bad behavior which may include late reporting for duty.
It should be noted that incompetence has never been regarded as a sign of gross
misconduct in the case of Jet Speed Air Services V John Tumuhiirwe CACA 17.
However it may be a ground for summarily dismissal in an appropriate
cases65.
Summary dismissal is observed in the case of Barclays Bank (U) Ltd V
Godfrey
Muburu [1998-2000] SCCA N0. 1 OF 1998 where court held that summary
dismissal is dismissal without notice, an employer is empowered to summarily
dismiss without notice an employee who is guilty misconduct i.e. serious breach of
duty amounting in effect to repudiation by the employee of his obligation under the
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contract of employment such as disobedience of lawful orders, misconduct,
drunkenness, incompetence and negligence. In summary dismissal, the employer
gives no notice if a particular employee was dismissed on the basis that he
possessed a particular skill, he may be dismissed summarily without notice if he
fails to display a reasonable degree of competence in that skill or performs his
work so negligently that his employers business is likely to be so injured.

4. Termination on attaining retirement age under Section 58 (1) (b) and 65

(2) (d):
The law does not deem it necessary for the employer to inform in advance the
employee that the latter is about to lose his job because of attaining retirement age.
This is simply because common sense tells the employee that he is of age and the
only advisable thing to do is to prepare his records properly and quantify his due
benefits.
Subject to expectations listed under the pensions Act Cap 286, the retirement age is
60 years. In Hon. Gerald Kafurreka Karuhanga v AG Constitutional Petition
N0. 0039 2013 CC Ruby Apio Aweri as he then was JCC explained that the
objective of the retirement is to allow the public officer to enjoy the fruits of
his/her labour while allowing others to join service, that latter objective is
important for institutional renewal. Section 12 Pensions Act Cap 286 is to the
effect that an officer shall retire at 60 years however, the president may acting in
accordance with of the public service commission or judicial service commission
as the case may be require an officer to retire from the service of the government at
any time after attaining the age of 50. This does not apply to an official judge of
High Court, Court of Appeal Judge and Justice of Supreme
Court.

5. Termination by labour officer:

The labour officer under Section 31 Employmen t Act, 2006 has power to declare
a contract of service terminated where an employer is unable or refuses to pay
wages upon an application by an employee.

6. Termination due to insolvency of an employer:

Section 30 of Employment Act provides that where the employee is a company
and it is wound up. Otherwise closes its business under the law, the contract is
deemed to be terminated and the employee has right to claim his due benefits such
as he would claim in ordinary cases of termination. The winding up of the
employers business shall terminate the contract of service one month from the date
of winding up order. Thus in the case of Mwesigwa and Tumwesigye V Uganda
Consolidated Properties Ltd SCCA 7 of 2002 where the employer company was
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closed under government policy of reform and divestiture, consequently he letters
from the directors terminating the appellants employment in the respondents
company was a mere formality as the company had already been closed by the
government. In the result, the appellant’s employment was abnormally terminated
by the government which closed the respondents company. The appellants were
entitled to a severance allowance.
On winding up of n employers business the claim of employee or other person
claiming on his behalf for wages and other payments shall have priority over all
claims which have accrued in respect of 26 weeks immediately preceding the date
on which the declarationis made under Section 48 0f Employment Act, 2006

7. Death of the employer:

Section 29 Employment Act, 2006 provides that where the employer’s personal or
legal position formed the basis of employment relationship with the employee, the
death of the employer shall cause the contract of service to terminate one month
from the date of the employers death unless it is otherwise legally terminated
within that period. It would follow that death contracts of personal service, the
death of the employer terminate the contract for example if Awufu employed a
barber Ratibu to save his hair weekly and subsequently Awufu dies, the contract of
is therefore terminated and Ratibu may claim any due benefit from Awufu’s estate.

8. Redundancy:
The dismissal of an employee is taken to be by reason of redundancy if it is
attributable mainly or wholly to one of the two circumstances that is the fact that
his employer has ceased or intends to cease to carry on the business for purpose of
which the employee was employed by him to carry on that business in the place
where the employee was so employed. OR. The fact that requirement of that
business for an employee for an employees to carry out work of particular kind in
the place where the employee was employed by the employer have ceased or
diminished or are expected to cease or diminish ie cessation of business and
diminishing requirement only. The courts will not inquire in to the motive of the
employer as to the closer Thus in moon v home town furniture ltd[1977]1 CR
121 it was held that that tribunal had no duty to ask the motive provided there was
closure of the factory under the law.

9. Probationary contracts:
This is the contract of employment which is not of 6 months duration, is in writing
and expressly states it is for a probationary period Section 2, 67 of Employment
Act, 2006. The maximum length of a probationary period is six months, but it may

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 be extended for a further period of not more than 6 months with the agreement of
the employee76. An employer shall not employ under a probationary contract an
employee on more than one occasion. This contract is terminable by a fourteen
days’ notice or payment of 7 days wages in lieu of notice Section 67 (2) of
Employment Act, 2006
.
In the case of International Law Institute V Doreen Rugundu CAC 56/2002
26TH/11/04 the respondent was offered a job after passing interview of the
appellant on 25th July 2000. The contractual commencement date was January
2001. The respondent spent some time at their office familiarizing herself with the
operations. On 25th August, the appellant wrote to the respondent informing her
that her services were no longer required and she sought explanation in vein. She
instituted an action for breach of contract and High Court awarded her 10milLion
as damages hence the appeal. Justice Byamugisha JJA in his lead judgment
held that: - it is generally accepted that employer has right to terminate the
contract of service of his employee by dismissing him with or without notice if the
contract of service provides so. Apart from this an employer can dismiss an
employee who has been guilty of serious breach of duty that amounts in effect to a
repudiation of this contract.

The law regarding master and servant is not in doubt. There cannot be specific
performance of a contract of service and master can terminate the contract with his
servant at any time and at any time and for any reason or for none. But if he does
so in a manner not warranted by contract, he must pay damages for breach of
contract. The question in a pure case of master and servant does not at all depend
on whether the master has heard the servant in his own defense, it depends on
whether the facts emerging at the trial prove breach of contact.

In this current case the contract was still probationary terms and employee could be
lawfully terminated under the law by giving a 7 days’ notice or by paying 7 days
wages in lieu of notice. The appellant gave respondent a notice of over 4 months
which is over and above the period provided by law or reasonable notice under
common law rule. The respondent had not yet commenced with work and had no
accrued rights. And she was therefore not dismissed from employment and no
rights accrued since the contract was not operationalized.

Remedies available for the aggrieved party:-

1. Re-instatement;

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Reinstatement was defined in the case of Omunyokol Akol Johnson V Attorney
General Civil Appeal N0 06 OF 2012 to means and requires the employer to treat
the employee in all respects as if he had not been dismissed, Thus his pay; pension;
seniority rights etc. must be restored to him and he will benefit from any
improvement in terms and conditions which came into operation whilst he was
dismissed. It involves the ex-employee returning to his previous job with full back
pay, and any seniority related increments honored. In any case the employee has to
be treated as if he/she has never been dismissed .Steven Taylor and Astra Emir
Employment Law Oxford University.

Section 71 of Employment Act 2006 is to the effect the court may order for the
reinstatement of the employee in his employment if it is shown that he / she was
unfairly dismissed. For example in the case of McClalland v. Northern lreland
General Health Service Board [1957] 2 All ER 129, the plaintiff's contract was
one of master and servant, the only special condition being that her post had been
advertised as "permanent and pensionable" and it provided specific reasons, such
as gross misconduct and inefficiency, for which she might be dismissed. The
defendant Board introduced a rule after her appointment that women employees
must resign on marriage and since the plaintiff got married, the respondents
terminated her service by giving what they thought was a reasonable notice.
The plaintiff contended that the defendant Board was not entitled to terminate her
service and claimed a declaration that the purported termination was null and void
and she continued in service. The House of Lords held that the contract was
exhaustive as regards the reasons for which the defendant-Board could terminate
the service of the plaintiff and since none of those reasons admittedly existed, the
termination of service of the petitioner by the defendant-
Board was nullity and the plaintiff continued in service of the defendant-Board.
This was a case of a pure contract of master and servant and yet the House of
Lords held that the termination of employment of the plaintiff by the defendant-
Board which was not accepted by the plaintiff was ineffective and the plaintiff was
entitled to a declaration that she continued in service.

However section 71 (6) of The Employment Act, 2006, is to the effects of

exceptions to the above. Upon the finding that an employee has been unfairly
terminated, the court shall require the employer to re-instate or re-employ the
employee unless; -
(a) The employee does not wish to be reinstated or re-employed;
(b) The circumstances surrounding the dismissal are such that a continued
employment relationship would be intolerable;

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(c) It is not reasonably practicable for the employer to reinstate or reemploy the
employee; or
(d) The dismissal is unfair only because the employer did not follow a proper
procedure.
Thus in the case of Waga B Francis V CAO Maracha &
Another (supra) where court held that the circumstances surrounding dismissal
viz preceded by an accusation of misappropriation of funds followed by a
prosecution that lasted for three years and 4 months and there are not having been
any semblance of procedure followed to termination of contract of employment, a
continued relationship with the second defendant would be intolerable thus re-
instatement not granted.

2. Claim for compensation:

Section 71(5) (b) of the Act, 2006 is to the effect that an employee may be
compensated if the termination is unfairly done. For example compensation in lieu
of notice and damages.
a) An employer who terminates the contract of his employee without the
statutory notice is liable for the payment of compensation in lieu of notice.
Thus in Barclays Bank Of Uganda V Godfrey Mubiru C.A No.1 of 1998
(S.C,“Where any contract of employment, like the present, stipulates that a party
may terminate it by giving notice of a specified period, such contract can be
terminated by giving the stipulated notice for the period. In default of such notice
by the employer, the employee is entitled to receive payment in lieu of notice and
where no period for notice is stipulated, compensation will be awarded for
reasonable notice which should have been given, depending on the nature and
duration of employment.

When an employee is successful, he or she is then entitled to damages in lieu of

reasonable notice of termination. Hence in the case of Dr. Omona Kizito V Marie
Stopes Uganda ltd, the claimant was on a fixed contract for 2 years. It was
terminated unlawfully when the claimant still had 14 months to work in the
contract and the contract was terminated without notice, court held that the
plaintiff was entitled to the payment in lieu of notice.

b) Damages: It follows therefore that general damages are awarded to an

employee, whose employment has been unlawfully terminated, if that employee
proves facts that call upon court's disapproval of the employer's conduct in
terminating the services of the employee. Thus approval of principle which was
held in the case of Vine v. National Dock Labour Board [1956] 1 QB 658, “it has
long been well settled that if a man employed under a contract of personal service
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is wrongfully dismissed, he has no claim for remuneration due under the contract
after repudiation. His only money claim is for damages for having been prevented
from earning his remuneration. His sole money claim is for damages and he must
do everything he reasonably can to mitigate them85.
This claim can be Special damages which represent actual losses suffered by the
claimant as a result of the wrong committed and must be specifically pleaded and
proved, general damages are at large and are assessed by the Court on the basis of
the injury, suffering and inconvenience caused to the plaintiff. Even exemplary
damages serves as a warning, punitive damages shows punishment against the
employer.

However as regards to claims for wages or allowances or alike cannot be awarded

in a wrongful termination during the period of wrongful termination. Kanyeihamba
JSC Labour Dispute Claim. No. 033/2015 (Arising from HCT-CS No. 73/2015)
85 Stanbic Bank Ltd v Kiyimba Mutale Civil Appeal no. 02 of 2010 (as he then
was) in the case of Bank of Uganda V Betty Tinkamanyire Civil Appeal no. 12
of 2007, stated in his lead judgment at P.7 thus; “the contention that an employee
whose contract of employment is terminated prematurely or illegally should be
compensated for the remainder of the years or period when they would have retired
is unattainable in law. Similarly, claims of holidays, leave, lunch allowances and
the like which the unlawfully dismissed employee would have enjoyed had the
dismissal not occurred are merely speculative and cannot be justified in law”.

3. Claim of Severance allowance:

Allowance by their virtue and definition are for special purpose to enable the
employee carry out his duties more efficiently without having to draw on his basic
salary which would hardly stretch that far.
section 87 of the act 2006 is to the effect that the employer shall pay severance
allowance where an employee has been in his/ her continues service for a period of
6 months or more and where the employee is unfairly dismissed by the employer,
employee dies in the service of his employer otherwise than by an tact occasioned
by his/her own serious and willful misconduct, employer terminates the contract
because of physical incapacity no occasioned by his own wilful misconduct, the
contract is terminated by the death or insolvency of the employer, the contract is
terminated by the labour officer following in ability or refusal of the employer to
pay wages under section 31 of 2006 Act or by regulations of the minister as he
may make. Also section 91 of the Act, the severance allowance shall be paid on the
cessation of the employment or grant of any leave of absence pending the cessation
of employment which occurs earlier. Thus in the case of Uganda Commercial
Bank V Yerusa Nabudere and Another CA 31/2001 CA where Nabulere was
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voluntarily retired under scheme of the government, his accumulated leave was
never paid. Court held that “when one goes on leave, is still on payroll, he is
therefore entitled to all the benefits of being employed even when on leave. The
purpose of taking leave is to get refreshed and in vigorated so that performance is
improved on resumption of duty. Allowance by their virtue and definition are for
special purpose to enable the employee carry out his duties more efficiently
without having to draw on his basic salary which would hardly stretch that far. It
was appellants’ bank that denied him to take on leave because of business
pressure. Therefore he was entitle to his salary for accumulated leave for 10
months, his basic salary and allowance accruing there from and there would be no
duplicity of payment because he had worked for and earned those emoluments
due”.
Severance allowance is not paid where the employee is justifiable summarily
dismissed, abscond from or abandon his work without a justifiable reasons, having
been terminated and re-instated on the job or other jobs similar or better terms and
refuses the offer or still serving on probation or the employee is in partnership
which is dissolved and better job was offered and the employee refuses, on
termination by death of the employee and a job offered by personal representative
of the deceased on no less similar terms bars the claim under Sections 88(1)(a),
88(1)(c), 88(1)(b), 88(2)(c), 88(2)(a), 88(2)(b).

4. Claim for redundancy indemnity payment:

an employee can plead for the redundancy indemnity as claim before court if the
contract stipulates so. Thus in the case of Mohammed Muwanga V Lint
Marketing Board where court held that” the trial court correctly awarded 96,811
being payment of 3 months lieu of notice which the appellant should have been
paid before termination and it should have awarded allowance on those
corresponding months and that appellant was entitled to redundancy indemnity
payable for 15 months pursuant to staff regulations and terms and conditions of
service, redundancy claim should be pleaded for”.

5. Re-engagement of the employee:

This involves the ex-employee being taken in to employment by the employer but
not necessarily in to exactly the same job or on the same terms and conditions. The
precise terms of reengagement orders inevitably vary from case to case but the key
principle is that the new position should be both comparable to the previous job
and suitable.

6. Public law remedy of judicial review:

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Public employer may be able to bring proceedings for judicial review against their
employer challenging their decision on grounds of illegality, unreasonability or
procedural irregularity89 leading to decision being quashed. This is done by way
of public law remedy of certiorari and order to require the employee to perform a
duty may also be sought by means of mandamus
Thus in Katono Yusuf V IUIU Civil Cause no.011 of 2019 the applicant prayed
for an order of certiorari quashing the decision of the respondent's staff review
committee. The evidence on record clearly shows that the committee that handled
the matter had no authority and acted in contravention of the law as already
decided above. I will therefore issue an order of certiorari quashing the decision of
the respondent's staff review committee of 28th march, 2019

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