LECTURE TWO
EMPLOYMENT CONTRACTS
The Master and Servant Ordinance No 19 0f 1913 was passed in 1913 and it applied to all contracts of employment including those with the protectorate government. This ordinance also had penal sanctions for breach of contract. The servant was subjective to types of offences; offences by the servants class 1 and offences by the servants class 2. Under class 1 in s.42 the offences included claiming or refusing after entering a contract to commence work at the stipulated time; absenting oneself without leave or lawful cause from work; unfitting oneself for the proper performance of their work by becoming or being intoxicated; neglecting to perform any work which it is his duty to perform or carelessly or improperly performing the same; making use without leave or for his own purposes of any property belonging to the employer e.g vehicles or horse; using abusive, insolent or insulting language to the employer or the employer’s representative which meant breach of peace; refusing to obey any command of the master; entering into or obtaining a contract of employment under fictitious circumstances, among others.
For class 2 under s.43 the offences included willful breach of duty through drunkenness, or doing any acts tending to immediate loss, damage or serious risk of any property vested under his charge by the employer or his representative; neglect of duty; an employee failing to report to his employer the death or loss of any animal vested in his charge at the earliest opportunity, or failing to preserve for his employer’s use or inspection any part or parts of the animals alleged to have died.
Offences such as those under class one were punishable by one month imprisonment or an equivalent in wages while those under class 2 were punishable by imprisonment not exceeding 2 months or an equivalent not exceeding 2 months’ wages. However, the contract could not expire due to the punishment of imprisonment. The employer under s.49 could pay a fine or be imprisoned if he held an employee’s wages without a reasonable cause. It was a criminal offence to do so. Other offences included failure to provide medicine, medical attendance, notifying the death of a servant to a magistrate or stating the cause of death or payment of the wages and delivering all property upon the deceased servant. The employer had an obligation to repatriate the servant and supply him food in the course of repatriation.
It should be noted that this ordinance was somewhat a progressive legislation and intended to enhance the development of the capitalists’ social relations between wage labour and capital generally. And this explains why the state punished either party in case of breach. In practice it was easier for the employee to be punished than the employer. The reason is that employees did not have any unions to put pressure on the employers. The second reason is that labour was predominantly unskilled and therefore did not have the capacity to challenge the unfairness in the master servant relationship.
This ordinance was repealed by the Employment Ordinance of 1946 and the loudest characteristics of this ordinance were to remove the penal sanctions which were in the previous one. This became the Employment Act, cap. 190 Laws of Uganda, 1964 which was then replaced by the Employment Decree of 1973. This decree was replaced by the Employment Act, cap 219 which was also replaced by the Employment Act 2006 that is now in force.
1.2 Nature of Contract of Employment
A contract of employment, often called a service agreement or a contract of service is a contract. It governed by contractual principles such as offer, acceptance, consideration and illegality. In Laws v London Chronical (indicator Newspapers) ltd (1959) Lord Evershed held, ‘…a contract of service is but an example of contracts in general, so that the general law of contract is applicable…’
1.3 Specialized Nature
The contract of employment is, however, a specialized form of contract. Rights and duties have been superimposed on those contractual arrangements classified as employment one and employers cannot derogate from these rights or duties even by contract. These include sections 5 & 6 of the Employment Act 2006 that provide for statutory protection against sexual harassment and discrimination in employment.
Who is an Employer-section 2 of Employment Act of 2006-is any person, partnership, corporate body or unincorporated association who (or which) employs one or more persons under a contract of employment.
Who is an employee-section 2 of the Employment Act provides-any person who has entered into a contract of service or an apprenticeship contract, including, without limitation, any person who is employed by or for the Government of Uganda, Uganda Public service, local authority or a parastatal organization but excludes a member of the UPDF
1.4 Contract of Service or Contract for Service
The basic distinction between the two is-those who are employed persons work under a contract of service while those who are self employed, work under a contract for service.
Importance of Distinction
The distinction between employees and independent contractors is of fundamental importance to employment law but that distinction is not clear-cut. This is important because most of the modern protection legislation applies only to the employer-employee relationship and not independent contractors.
Distinction is important to employment law but the distinction is not clear cut. Most modern statutory protection applies only to employer-employee relationships and not independent contractors. Smith & Wood, Industrial law 6th Ed. – independent contractor may be in a better monetary position while working but at grave disadvantage if any accident happens or is sacked.
(a) Vicarious liability makes employers liable for employee torts in course of employment, but not necessarily for contractors Muwonge v. AG [1967] EA 17.
(b) Workers Compensation Act. 3 it is to employees for injuries sustained in course of employment.
(c) NSSF Act. S. 12 &11 Mandatory for employees (15%) to make contributions to the fund as well as their employers (5%).
(d) PAYE (Income Tax Act) only deducted from employees’ s. 19 salaries and Local Service tax from the same.
(e) VAT. Contractors may have to register for it- employees don’t.
(f) Employment legislation such as; Employment Act, Labour Unions Act, Occupational Safety & Health Act 2006, etch apply to employers and employees not independent contractors hence- sick pay, maternity & paternity leave apply only to employees.
(g) Employment Act makes employees preferential creditors with regard to arrears of wages in case of bankruptcy or winding up of the employers business s. 48
(h) Employers must adopt higher standards of care towards their employees than independent contractors who work for them.
1.5 Employee Contracts.
Employee contracts attribute rights and responsibilities between parties to a bargain and are made between the employer and the employee. It is governed by contractual principles such as offer, acceptance, consideration and legality.
Rights and duties are superimposed on these contractual arrangements and employers cannot derogate from these rights or duties even by contract. The parties agree to the terms and conditions provided they are not less than what the Act provides or exclude the application of a provision of the Act to the detriment of the employee, where permitted by the Act. [S.27].
1.6 Characteristics of a contract of employment.
1- Control; manifests in how the work is to be done, at what time, exhibiting a certain form of character including the dress code, salary scale etc
2- Right to terminate; generally an employer has a right to terminate. Previously there was no obligation to give reasons for termination, but now the law emphasizes procedural fairness.
3- Notice; generally in a contract of employment, termination is preceded by a notice. Notice arises as a result of contract or as a result of law.
4- Summary termination and summary dismissal; in summary dismissal, you are very disgraceful person and affects entitlement under Pensions Act. Before you summarily dismiss, you must be sure about the justification of the dismissal.
1.7 CONTRACTS OF EMPLOYMENT UNDER COMMON LAW:
It was protectionist in nature, elements of control, power to hire and terminate. Read Art 43 and 40 of the Constitution.
What is the distinction between a contract of employment and a contract for services?
A typical contract of employment is a contract of service as opposed to a contract for services. In a contract of service or a contract of employment, a person places his or her labour at the disposal of another and thus the relationship constituted is employer-employee as opposed to employer and independent contractor where a person is in business on their own account. This distinction is important because an independent contractor and employee have separate and distinct causes of action under contracts with the employer. The distinction is also important for purposes of determining liability arising from the actions of employees in the course of employment. Relatedly the distinction is also important for other benefits eg trade union membership, social security and protection, worker’s protection, tax liability, health and safety issues. It has been difficult in practice to distinguish between employees and self-employed as the question of employment status is generally a question of fact rather than law. To determine employment status the courts have developed over the years a number of tests to determine employment status together with the circumstances of the case.
Factors that courts take into account when determining whether person concerned was an employee or independent contractor.
Control Test
The traditional criterion of distinguishing an employee from an independent contractor is the right and degree of control. In many cases a servant has been seen as anyone subject to command of employer in what to do, and how, time & place and equipment etc.- express or implied. If contract gives employer extensive control over work to be done it is a contract of service absent strong indication to contrary from other factors of relationship.
It was first established in the authority of Yewens v Noakes, where Bramwell LJ stated: ‘A person was an employee if his employer has the right to control not only what work he does but the way in which that work is done.’ “A servant is a person subject to the command of his master as to the manner in which he shall do his work.’.
This test was furthered in the case of Performing Rights Society v Mitchell and Booker, which stated that, ‘the final test, if there is to be a final test, and certainly the test to be generally applied, lies in the nature and degree of detailed control over the person alleged to be a servant.’ In this case the defendants were sued for the breach of copyright by a jazz band. The defendant owned a dance-hall and had agreed in writing for a band to play at the hall as long as it did not infringe any copyright in the music it chose to perform. Unfortunately the band chose to play some music but did not have the plaintiff's permission. The plaintiff decided to sue the owners of the dance hall looking to hold them responsible for the actions of the band. However the defendant’s liability depended on it being proved that the band were employed by them. The court looked at the facts that regular hours where worked each day by the band, there was a fixed period of employment, the band had been told where they should work, and they had exclusivity of service, there was also a right to dismiss the band for the breach of any fair instructions or requirement. In short the court looked at the 'nature and degree of detailed control over the person alleged to be a servant' and the band was held to be an employee.
Lord Thankerton in Short v J W Henderson Ltd [1946] 62 TLR 427 identified many key features that would show that the master had control over the servant. These included the power to select the servant, the right to control the method of working, the right to suspend and dismiss, and the payment of wages. Such a test is virtually impossible to apply accurately in modern circumstances. Nevertheless, there are circumstances in which a test of control is still useful, in the case of borrowed workers. Mersey Docks & Harbour Board v Coggins and Griffths (Liverpool) Ltd [1947] AC 1 Here the test was applied when a crane driver negligently damaged goods in the course of his work. In this case the Harbour Board hired a crane and the crane driver out to stevedores to act as their servant. Under the contract between the Board and the stevedores the crane driver was still to be paid by the Board and only they had the right to dismiss him, but for the duration of the contract he was to be regarded as the employee of the stevedores. The Harbour Board was still held to be liable for his negligence, however, since he would not accept control from the stevedores.
In the case above Lord Porter gave a very clear explanation of the control test: ‘the most satisfactory [test] by which to ascertain who is the employer at any particular time, is to ask who is entitled to tell the employee the way in which he is to do the work upon which he is engaged & it is not enough that the task to be performed should be under his control, he must control the method of performing it.’
This can be seen in Hawley v Luminar Leisure plc [2005] EWHC 5 (QB) where a nightclub owner was held to be in control of and therefore vicariously liable for bouncers actually employed by a security firm. This was because the owner gave the men detailed instructions on how to do the job. If employer only determines what is done not how, then the worker is independent contractor. Honey Will & Stain Ltd v. Lakin Brothers Ltd [1934] 1 KB 19 Slaser LJ said… “the determination whether the actual wrong doer is a servant or agent on the one hand is or… contractor.. depends on whether or not the employer only determines what is to be done but retains the control of the actual performance in which case the doer is a servant or agent… if the employer while prescribing he work to be done levels the manner of doing in to the control of the doer, later is an independent contractor.”
This test is criticized as being more appropriate for an earlier age. It reflects the state of society in which ownership of means of production coincided with possession of technical knowledge and skill- which was acquired largely by being handed down from one generation to the next by old tradition and not being systematically imparted in institutions of learning.
As specialist skills of employees increased, the unskilled employer was less and less able to control their work. Morren v. Swinton&Pendlebury Borough Council [1965]2 ALLER 349, A contract for services, made between a local authority and consultant engineers, provided for the consultant engineers to supervise the execution of sewerage works and that the local authority should appoint and pay a resident engineer, to be approved by the consultants, to supervise the works under the consultants’ instructions. The local authority, with the approval of the consultants, appointed the appellant at a salary. The local authority had the right to dismiss the appellant; he was paid subsistence allowance and for holidays, employer’s national insurance contributions were paid in regard to him, and there was provision for a month’s notice.
Held – The appellant was employed by the local authority under a contract of service, not a contract for services, notwithstanding that he was to work under the instructions of the consultant engineers; Lord Parker said that the factor of superintendence and control is of little use as a test whether a contract is or is not a contract of service where the person concerned is a professional man, engaged for his skill and experience Instances of that have been given in the form of the master of a ship, an engine driver, a professional architect or, as in this case, a consulting engineer. In such cases there can be no question of the employer telling him how to do work; therefore, the absence of control and direction in that sense can be of little, if any, use as a test.
In Gold v. Essex County Council [1942] 2 KB 293 Court of Appeal held that a radio grapher was a servant of the hospital that employed him and thus it was vicariously liable for his negligence in the course of his duty, even though hospital authorities were not competent to dictate him on how he should exercise his skill In Collins v Hertfordshire County Council and Another While undergoing and operation, a patient in a county council hospital was killed by an injection of cocaine which was given by the operating surgeon in the mistaken belief that it was procaine. The operating surgeon had ordered procaine on the telephone, but the resident house surgeon (who was then unqualified) had misheard “procaine” as “cocaine,” and had told the pharmacist to dispense a mixture which was, in fact, lethal. The pharmacist dispensed the mixture without making further inquiry and without requiring the written instruction of a qualified person, and the operating surgeon had given the injection without checking that it was what he had ordered. The operating surgeon, the house surgeon, and the pharmacist were all three in the full-time or part-time employment of the council. In action for negligence.
Held –
1- The county council, in managing the hospital, was permitting a dangerous and negligent system to be in operation, and the operating surgeon and the house surgeon had failed to exercise reasonable skill and care.
2- the council were able to control the mannmer in which the resident medical officer performed her work and, therefore, the acts of the house surgeon done in the course of her employment were acts for which the council was responsible.
3- although the operating surgeon was a part-time employee on the staff of the council, the council could not control how he was to perform his duties and was not responsible for his want of care.
Hilbery J summarised the distinction in this way: “… in a contract for services the master can order or require what is to be done, while in the other case [a contract of service] he can not only order or require what is to be done but direct how it shall be done
Cassidy V. Ministry of Health [1951] 1 ALLER; the plaintiff was operated on a couple of fingers of his left hand, but due to inaction of the doctors not responding to his alarms of feeling pain he ended up losing feeling and sensing in the entire hand by the time the bandages were removed. in finding the hospital liable; Lord Denning liability of hospital authorities for the negligence of a doctor on permanent staff of hospital does not depend on whether he is employed under a contract of service or for services. It depends on who employs him. If patient himself selects and employs the doctor, the hospital authorities are not liable for his negligence. Where doctor consultant or not employed and paid by hospital authorities, authorities are liable for his negligence in treating the patient.” the negligence in the duty itself was the employers’ duty to provide.” The defendant was therefore liable. The reason why the employers are liable in such cases is not because they can control the way in which the work is done—they often have not sufficient knowledge to do so—but because they employ the staff and have chosen them for the task and have in their hands the ultimate sanction for good conduct—the power of dismissal.
This can be seen in Hawley v Luminar Leisure plc [2005] EWHC 5 (QB) where a nightclub owner was held to be in control of and therefore vicariously liable for bouncers actually employed by a security firm. This was because the owner gave the men detailed instructions on how to do the job.
The integration or organisation test Lord Denning in Stevenson Jordan and Harrison Ltd v McDonald and Evans [1969] 1 TLR 101 established this test. The basis of the test is that someone will be an employee whose work is fully integrated into the business, whereas if a person’s work is only accessory to the business then that person is not an employee. Lord Denning proposed that 'It is often easy to recognise a contract of service when you see it, but difficult to say wherein the difference lies. A ship's master, a chauffeur, and a reporter on the staff of a newspaper are all employed under a contract of service; but a ship's pilot, a taxi-man, and a newspaper contributor are employed under a contract for services. One feature which seems to run through the instances is that, under a contract of service, a man is employed as part of the business and his work is done as an integral part of the business whereas, under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it.'
The economic reality or multiple test or entrepreneur test The courts in recent times have at last recognised that a single test of employment is not satisfactory and may produce confusing results. The answer under this test is to consider whatever factors may be indicative of employment or self-employment. In particular, three conditions should be met before an employment relationship is identifed:
■ The employee agrees to provide work or skill in return for a wage.
■ The employee expressly or impliedly accepts that the work will be subject to the control of the employer.
■ All other considerations in the contract are consistent with there being a contract of employment rather than any other relationship between the parties.
This test was first established in the case of Ready Mixed Contcrete (South East) Ltd v MPNI Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497
The case involved who was liable for National Insurance contributions, the company or one of its drivers. Drivers were used under a new contract under which they drove vehicles in the company colours and logo that they bought on hire purchase agreements from the company. Under the contract they were also obliged to maintain the vehicles according to set standards in the contract. They were only allowed to use the lorries on company business. Their contracted hours, however, were fexible and their pay was subject to an annual minimum rate according to the concrete hauled. They were also allowed to hire drivers in their place. Although it might be seen to have operated unfairly on the claimant, the drivers were held to be independent.
The case is important because McKenna J developed the above test in determining their lack of employment status. Lord McKenna commenced by categorising the facts of case into either self-employment or employment. Lord McKenna then examines the facts against three conditions that required building a contract of employment.
Firstly, the skills provided must be in exchange with wages.
Secondly, control elements should exist on the employer (resembles control test).
Thirdly, the contract provision must be in consistent with the control of service.
As in this case, Lord McKenna J held, due to the freedom of delegation, the contract between the plaintiff and defendant was contract for service (self-employment). All of these are useful in identifying the status of the worker but none of them is an absolute test or is definitive on its own. Some of the guiding principles include’
i. Control
ii. Ownership of tools
iii. Loss of profits
iv. Benefit test or who is the owner of the business You must consider the whole contract as a whole and all the tests in determining the type of contract it is.
The multiple test was also applied in Market Investigations Ltd v Minister of Social Security 1969 2QB where it was stated by Judge Cooke that “if the person who has affianced him or herself these services, performing them as an individual in business on his or her own account?”. In this case Mrs Anne Irving from time to time did market questionnaires. There was a dispute between the business for whom she did the surveys, Market Investigations, and the Minister for Social Security over whether National Insurance contributions should have been made on her behalf. This depended on whether she was an employee.
Cooke J held Ms Irving was an employee for the purpose of National Insurance contributions, despite ‘a limited discretion as to when she should do the work.’ Mrs Irving could control some of the way she carried out the work, but not entirely. She could not be said to be in business ‘on her own account,’ a judgment which depended on a list of factors, none of which are decisive.
After quoting Lord Wright, Lord Denning and the Supreme Court of the United States, Cooke J said the authorities, “ "suggest that the fundamental test to be applied is this: 'Is the person who has engaged himself to perform these services performing them as a person in business on his own account?'. If the answer is 'Yes', then the contract is a contract for services. If the answer is 'No', then the contract is a contract of service". As control is also not a determining factor alone as other factors are important like the degree of financial risk, financial responsibility for the business, management responsibilities.
The multiple test has a clear advantage of being more flexible than the organisational and control test. The multiple test is also opened to changes as the society also changes. It however has a problem of dealing with workers who do not fit into usual category of employment like casual and seasonal workers.
In the far more recent case of Lee Tin Sang v Chung Chi-Keung, [1990] UKPC 9 the court considered elements such as who owns the tools used, who paid for the materials, and whether the worker stands to make anything from a profit to a loss on completion of the enterprise In mutuality of obligation test this basically looks at the relationship between the employer and the employee. For there to be mutuality the employer has the obligation to provide work and the employee to provide services in return for remuneration. When there is an absence of mutuality of obligation the claimant is concluded to be self-employed person in relation to payment of income tax and national insurance contribution as seen in the case of Parade Park Hotel v Comrs of HM Revenue and Customs 2007 S.T.C (S.C.D.) 430
where R May had no obligation to carry out work for Parade Park Hotel, and Parade Park Hotel under no obligation to offer work to Mr May.
As mutuality of obligation was part of the irreducible minimum of a contract of employment it followed that the relationship between Parade Park Hotel and Mr May could not amount to a contract of employment. There also has to be an irreducible amount of personal service to claim self-employed persons.
LECTURE 3
TERMS OF AN EMPLOYMENT CONTRACT.
1.1 Express Terms
The express terms of the employment contract are the terms actually agreed on by the parties. Where the contract is written these terms will appear on the document, where it is oral, practical difficulties can arise in proving what was agreed.
A contract of service [if not required by law to be in writing] may be made orally or in writing. [S.25]. If it is made with an illiterate person, it shall be attested to by means of a written document drawn up by a magistrate or labour officer who shall before attesting first ascertain that the employee has freely consented to it, be satisfied that the employee has duly understood its terms, before accepting it, ensure that it is in conformity with the provisions of the Act.
It is clearly of value that the terms of a contract be reduced in writing or evidenced in writing. In this way disputes can be averted more easily and evidence will be easier to obtain in the event of dispute. It is therefore a sensible step for the parties (or at least the employer who has the facilities) to be charged with the task of reducing the agreement in writing. The duty to do so and the details relating to this are seen in S. 59. An employee is entitled to receive from his employer notice in writing of the particulars of employment. It should contain: • the full names and addresses of the parties to the contract, • date of commencement of contract, • job title, • place where employees duties are to be performed, • wages which the employee is entitled to, • employee’s normal hours of work, etc. [S. 59].
Where there is any dispute between the employer and employee as regards the terms and conditions of employment, these particulars shall serve as evidence [S.60]. The general aim of the provision is to encourage the development of explicit and clear terms about the most important elements of the employee’s contract.
The most widely cited statement of effects of a written document is found in the case of Systems Floors (UK) Ltd Vs Daniel (1982) 1 CR 54 , where Court held that: “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 actual terms of the contract are different from those which he has set out in the statutory statement”.
1.2 Implied Terms
Frequently differences will arise about a matter on which the parties never reached actual agreement. When the contract was being made, they may never even have considered the matter or they may have done so briefly without reaching any conclusion. Court will not readily imply terms; generally the parties themselves and not the judges should decide what terms they are contracting under.
a) Terms may be implied by facts/officious bystander test,
A common form of implied term is one which is implied by virtue of the particular facts of the case. In deciding whether to fill a gap in the contract by implying a term, the test usually adopted is, if at the time they made their contract, would they almost certainly have agreed to the suggested term. The Courts attempt to guess what the parties would have decided had they faced up to the matter at that time. In B. P. Refinery (Western Port) Pty Ltd Vs. Shire of Hastings (1978) 52 A. J. LR 20 , court held that: “For a term to be implied, the following conditions (which may overlap) must be satisfied:-
• it must be reasonable and equitable (fair);
• it must be necessary to give business efficacy (value) to the contract;
• it must be so obvious that it goes without saying;
• it must be capable of clear expression;
• It must not contradict any express term of the contract”.
Unless the existence of a term is practically compelled by these tests, it will not be implied by the Court. Merely because the term in question is a quite reasonable one is not sufficient. Because employment contracts establish a somewhat unique continuing relationship, the courts tend to imply some terms in circumstances where these terms might not be implied in ordinary commercial transactions. When determining whether a particular term should be implied, the courts take account of various factors. One of them is the subsequent conduct of the parties; what they did after the employment commenced is a very useful indication of what term they would have agreed upon when the contract was being made.
b) Implied terms by Custom and Practice:
Some customs and practices prevailing at the workplace may be implied as terms of the employment contract, in order to attain contractual status in this manner, the alleged custom must satisfy four requirements:
• It must be notorious;
• Certain;
• Reasonable;
• And is a custom that is regarded as obligatory.
In other words the term must be:
• fair and not irregular,
• well established over a period of time,
• known to employees,
• clear and unambiguous.
If the custom is not notorious, then it is impossible to say that the employee in question could have not been aware of it on being hired. As in the case of work rules, it is essential to demonstrate that employees should have been fully aware of the custom or rule.
In Devonald v Rosser & Sons [1906] 2 KB 728,
it was said that “a custom cannot be read into a written contract unless it is so universal that no workman could be supposed to have entered into the service without looking to it as part of the contract.
But it has been held that it is not essential that the employee in question was actually aware of the custom; that it is immaterial whether he knew of it or not.
c) Terms Implied by Common Law:
These are more or less duties imposed by common law on the parties to a contract of employment. The common law duties on the part of the employer are to pay wages, to provide work, exercise care, to cooperate and to provide access to a grievance procedure. On the part of the employee, the debate is whether there is a duty to obey reasonable orders, exercise reasonable care and competence, maintain fidelity i.e. be honest, not compete, not misuse confidential information, not impede the employer’s business and duty to account. Most of these duties have been incorporated in written law. Under the Employment Act, 2006, the contract should specify clearly atleast the following:
(a) The parties to the contract of employment;
(b) The date of commencement of work ;
(c) Whether the contract is valid for the present or fixed-term;
A contract of employment that is valid for the present is the principal rule. This means that work will continue until the employee resigns or the employer dismisses the employee.
A fixed-term work contract means that the time of commencement and ending of work have been agreed upon. A contract of employment may be fixed-term, for example, for the following reasons:
• deputyship
• work experience placement
• project work
• peak demand or period
(d) Probationary period and its duration
A probationary period can be agreed upon at the beginning of the contract of employment. However, this can as well depend on the organisation’s human resource policies. During this period, the employee can assess whether the work is suitable for the tasks preformed and may dissolve the contract of employment without a period of notice. The grounds for dissolving the contract of employment during the probationary period must not be discriminating. During the probationary period, the employee is paid normal remuneration stated in the contract. The Employment Act restricts the tenure for probation.
(e) Place of work – This is normally the principle physical address of the employer;
(f) Duties – These are usually specified in the job description;
(g) Remuneration and its method of payment
Remuneration is determined according to the collective agreement. If there is no collective agreement in the sector of work, employees are entitled to reasonable remuneration. An employer must not pay remuneration that is less than stipulated in the collective agreement. Remuneration can contain various bonuses and such bonuses may include experience bonus, overtime pay and extra compensation for shift work among others. Any changes in an individual’s salary should be notified to him/her in writing.
Payroll and Salary Payments Procedures
An organisation may employ both permanent and contract employees. It is advisable to pay their salaries on approved payroll once every end of the month to respective account numbers in any. The Amount of remuneration should be as defined in the formal letter of appointment or contract documents net of all statutory deductions i.e. NSSF, PAYE, and any others that may come up by statute and statutory regulations from time to time.
Repayment of loans and advances and any other consented additional deductions may be deducted in the same way. Employees may need to note that compulsory deductions shall be made to make good to the Organisation, unaccounted for advances, willfull or careless destruction or loss of Organisation’s property and such other causes justifying deductions from an employee’s salary. Employers pay remuneration to the employee’s bank account after statutory and other allowable deductions. Employees are entitled to receive a payslip that shows the different parts which form the remuneration.
(h) Working hours The contract must specify regular working hours. Working hours must comply with the Employment Act.
i) Annual holidays and pay
An employee is required to work for an employer for not more than six consecutive days with a day’s rest, taken on any day which is customary or agreed between the parties. The maximum number of hours per week is 48.
An employee is entitled once in every calendar year, to a holiday with full pay at the rate of seven days in respect of each period of a continuous four months’ service or 21 days a year, to be taken at such time during such calendar year as may be agreed between the parties. Annual leave applies only to employees who have performed continuous service for their employer for a minimum period of six months or has been working under a contract of service for sixteen hours a week or more. A female employee shall, as a consequence of pregnancy, have the right to a period of sixty working days leave from work on full wages. When an employee’s contract is terminated he or she is entitled to receive a holiday with pay proportionate to the length of service for which he or she has not received such a holiday, or compensation in lieu of the holiday. An employee who has completed not less than one month’s continuous service with an employer and who is incapable of work because of sickness or injury is entitled to sick pay, however, he or she should notify or cause to be notified as soon as is reasonably practicable, his or her employer of his or her absence and the reason for it; and produce, if requested by his or her employer a written certificate signed by a qualified medical practitioner certifying his or her incapacity for work and duration of the incapacity. A male employee immediately after the delivery or miscarriage of his declared wife has the right to a period of four working days’ leave from work annually.
(j) Overtime payments
Depending on the structure of the organisation, the issue of overtime can apply to only junior and clerical staff or as management may consider appropriate.
• Days worked on public holidays can be compensated.
• In the cases where, due to nature of the employee’s work, an employee is required to work on his/her day-off, the employee can be compensated by taking a day off some other time.
(k) the terms or conditions relating to incapacity for work due to sickness or injury, including any provision for sick pay
(l) Period of notice
A contract of employment that is valid for the present expires after either the employee’s or employer’s period of notice. The period of notice signifies the time for the duration of which an employee is obliged to work before the notice date. During the period of notice, all the normal employees’ rights and obligations apply to the employee. If an employer dismisses an employee, they must provide the reason for it. The Employment Act specifies acceptable grounds for dismissal.
The Law requires the employer to maintain in writing a document containing the particulars enumerated above, in a language that the employee can reasonably be expected to understand. Section 60 imputes the written particulars to act as evidence where there is any dispute between an employer and employee concerning the terms and conditions of employment. The Section creates a rebuttable presumption that the terms and conditions of employment are accurately stated in the written particulars and in any notified changes.
1.0 DUTIES DURING EMPLOYMENT
Whereas in some jurisdictions the general duties of an employee are specifically listed in their legislations, there is no such express enumeration of the general duties of an employee in Uganda’s Employment Act. Consequently, it is to the common law and the various sections of the Employment Act and provisions of other applicable laws that one must direct one’s attention in this regard. The basic duties that the employee (er) owes to the other will now be discussed as below.
1.1 The Employer
Obligation to Provide Work
Generally, while the employee is contractually obliged to attend at the work place during the agreed times for working, the employer is not obliged to furnish actual work to be done. All that usually is required of the employer is to pay the agreed remuneration for the period during which the employee is at work. Although having no actual work to do may deprive the employee of job satisfaction is always regrettable but by itself provide no cause of action.
In Cresswell Vs. Sawdon & Co. (1901) 2 KB 653 the Plaintiff was hired for 4 years as a salesman at a fixed salary. Before the contract expired, his employer refused to provide him with any more work to do, although the employer was content to continue paying his salary. It was held that the employer was not thereby in breach of his obligation
This general principle does not apply where the employee’s remuneration depends entirely on being provided with tasks to perform, for instance where remuneration is based on piece rate or on commission. In those circumstances, in the absence of an express stipulation to the contrary, it is an implied term that the employee will be supplied with sufficient work to earn such remuneration as could reasonably be anticipated. Where parts of the agreed earnings are to be reckoned on a piece rate or a commission basis, the circumstances may warrant implying a similar term.
Such a term was held to exist in Re Rubel Bronze & Mental Co. (1918) 1 KB 315 , where the plaintiff was the company’s general manager for three years at a fixed salary together with a commission based on the company’s profit. Because he could have earned a very large commission on the profits, if made, it was held that he had therefore the right to ask that he should have a full opportunity to earning such commission.
In case an employer fails to provide work as required, he or she shall pay to the employee, in respect of every day on which he or she shall so fail, wages at the same rate as if the employee had performed a day’s work.
Obligation to Pay Wages
Wages are paid in legal tender to the employee entitled to payment. The payment of wages is required to take place at the place of the employee’s work or, if he or she works at more than one location, the premises of his or her employer from which he or she works or from which his or her work is administered.
An employee is not entitled to receive wages in respect of any period where he or she is absent from work without authorisation or good cause. Absence with good cause may be attributable to the occurrence of exceptional events preventing the employee from reaching his or her place of work or from working; summons to attend a court of law or any other public authority having power to compel attendance; or death of a member of the employee’s family or dependent relative, subject to an agreed number of days’ absence on any one occasion and a maximum of six days in any one calendar year among others.
In Orman Vs. Saville Sportwear Ltd, Court noted that; “establish the following proposition, where the written terms of the contract of service are silent as to what is to happen in regard 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 (terminated) by proper notice, except where a condition to the contrary can properly be inferred from all the facts and the evidence in the case. If the employer seeks to establish an implied condition that no wages are payable, it is for him to make it out.
Indemnity
The employer must indemnify his employee where the employee has incurred a liability while acting on the employer’s behalf except where the employee knew that he was doing an unlawful act.
In Burrows v Rhodes [1899] 1 QB 816 , the plaintiff (Burrows) was induced to enlist in the Jameson Raid of 1895, contrary to section 11 of the Foreign Enlistment Act 1870, by the defendants’ fraudulent representation that it had the sanction of the Crown (which would have made it lawful). Court held that no claim for damages could be founded on an act ‘if the act is manifestly unlawful or the doer of it knows it to be unlawful as constituting either a civil wrong or a criminal offence.’
Safety
The employer must take reasonable care to ensure that his premises are safe. He will therefore be in breach of his duties if he provides defective safety equipment knowingly or which he should have known on reasonable examination. The burden is on him to examine the equipment. He will also be in breach if he fails to remedy breaches that have been brought to his attention.
1.2 The Employee
Loyalty and good faith
The employee must not accept bribes or make secret profits.
Misconduct The employee must not misconduct himself. The term misconduct includes persistent laziness, immorality, dishonesty; drunkenness etc. misconduct will justify summary dismissal if it goes to the root of the contract. However, the misconduct may not necessarily be a once off but one where there is a history of complaints of insolence and inefficiency from time to time.
In Pepper v Webb [1974] ICR 428 , a gardener who behaved in a surly manner, showed disinterest in the garden, refused to perform certain tasks in the garden and was disobedient to the employer was held to have been summarily dismissed justifiably. However, in Wilson v Racher , a gardener was dismissed for swearing at his employer on one occasion. It was held that this was an exceptional outburst from an otherwise competent and diligent employee who had been provoked by his employer. Therefore there were no grounds for dismissal.
Account for property and gain
And employee must account for any money or property belonging to his employer and any gains made thereon.
Trade secrecy
The employee must maintain secrecy over his employer’s affairs during the time of his employment. If the employer wishes to extend this beyond the period of employment, it would be advisable to insert a suitable clause in the contract of employment (restraint of trade clause). The employee is under an obligation to his employers not to disclose confidential information obtained by him in the course of, and as a result of his employment. The duty applies both during employment and afterwards if the employee seeks to use such information to the detriment of his employer.
Competence and Care
An employee must be reasonably competent to perform the job for which he was hired. Extreme incompetence will warrant instant dismissal; it was been held in Harmer Vs Cornelius (1958) to be :
‘very unreasonable that an employer should be compelled to go on employing a man who, having represented himself, competent, turns out to be incompetent’.
Many employments have elaborate disciplinary procedures aimed at ensuring that the work is done with a reasonable degree of competence.
Indemnity
Since it is an implied term of the employment contract that employees will exercise a reasonable degree of care and skill in the performance of their work, consequently, it was held in Lister Vs Ramford Ice cold storage Co. Ltd 11, Court held;
that where an employer suffered financial loss as a result of his employees 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. On the basis of vicarious liability, the employers had to compensate that fellow employee for his injuries. It was held that the van driver was under an implied contractual duty to indemnify the employer in respect of that sum.
Obedience to reasonable orders:
Generally, employers are not entitled to give orders regarding what employees do outside their working hours but there are some jobs which warrant giving certain instructions about what an employee should or should not do while not actually at work, orders regarding what an employee should do outside work will usually be regarded as unreasonable, unless the contract clearly envisaged giving those orders. But the Courts would be most reluctant to strike down instructions given about how a particular task should be performed since, by the nature of the employment relationship, it is for the employer to determine how the work is to be done. An order would have to be wholly unconnected with the employee’s job or be manifestly unreasonable before it would be rejected by the courts.
An example of orders which were held unreasonable is Ottoman Bank v Chaharin (1930) AC 227 , involving a bank employee based in London. Under his contract, he could be posted abroad to any branch in Turkey. He was ordered to go and work at a branch there where, to the employer’s knowledge, his personal safety was at risk.
The Judicial Committee of the Privy Council in considering this order unreasonable held that; an employee can refuse to transfer to a geographical area where the employee would be at personal risk.
Even where a contract expressly authorizes the employer to give certain directions, ordinarily, those must still take due account of the employee’s health and safety, In Johnstone Vs Bloomesbury Health Authority (1991)
Dr Johnstone was a junior doctor at the University College Hospital was working on contract which required him to be available on call for 48 hours a week on average, on top of his 40-hour contract. His first claim was that it was a breach of the duty of care to have a contract which could cause foreseeable injury. His alternative claim was that the clause allowing him to be so long on call was contrary to the Unfair Contract Terms Act 1977. Court held that “an implied term in law can prevail over an express term. That there was a Duty A to be available for 48 hours, on top of 40 hours and a Duty B on the authority to not injure the employee’s health. The Authority had the power to make the employee work 88 hours a week on average. “But that power had to be exercised in the light of the other contractual terms and in particular their duty to take care for his safety”.
Co-operation
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. Because the employment contract envisages a continuing relationship between employers and employees, it would seem that the employee must perform the various contractual obligations with a degree of good faith. It is an implied term that the contract should be performed in such a way as not to undermine its commercial objective.
LECTURE 4
SOCIAL SECURITY , PENSIONS AND SOCIAL PROTECTION
1.0 SOCIAL SECURITY
This is regarded as the principle or practice or a program of public provision (as through social insurance or assistance) for the economic security and social welfare of the individual employee and his or her family. Organisations can as well have in-house social security programmes for their employees. The main purpose is retirement planning.
The NSSF Act allows any employee of or above the age of sixteen and below the age of fifty-five years as eligible for registration and membership to the Fund. Subject to any prescribed terms and conditions, the employer may apply for voluntary registration as a contributing employer; and any eligible employee of such employer may thereafter apply for voluntary registration as a member of the fund.
Under the NSSF Act S. 12, every contributing employer is required for every month during which he or she pays wages to an eligible employee to pay to the fund, within fifteen days next following the last day of the month for which the relevant wages are paid, a standard contribution of 15 percent calculated on the total wages paid during that month to that employee.
Under S. 116 of the Income Tax Act, every employer shall withhold tax from a payment of employment income to an employee. If an eligible employee is employed successively or concurrently by two or more employers, each of such employers shall pay to the fund in respect of such employee a contribution corresponding to the wages he or she pays to such eligible employee. An employer is required to furnish to the managing director on an approved form particulars regarding each eligible employee in his or her service, his or her wages, the contribution due on such wages, the total wages. The managing director may grant a certificate of exemption to employers who engage the following employees:
a. Persons not ordinarily resident in Uganda but liable to contribute to or are or will be entitled to benefit from the social security scheme of another country, if that scheme is approved by the Minister.
b. Persons not ordinarily resident in Uganda who are liable to contribute to or are or will be entitled to benefit from any scheme associated with their employment under which benefits comparable to the benefits under the NSSF Act, are provided, if that scheme is approved by the Minister.
Of late a new initiative of Voluntary Membership which provides employers and workers that are not compelled by the mandatory provisions of the NSSF Act the opportunity to voluntarily save for their retirement has been launched. This is open to employers with less than 5 employees and individuals who are former NSSF members, whom the Fund already paid their respective benefits, but are still able and willing to save with the Fund.
2.0 PUBLIC SERVICE PENSION SCHEME
The Public Service Pension Scheme (PSPS) was established in 1946. The provision of pension benefits to the public service employees (covering traditional civil servants, including police and prisons services, local government employees and teachers 14 ) is enshrined in the constitution.
The Armed Forces are provided for under the Armed Forces Pension Act (AFPA). Meanwhile, until 1994, the provision for pensions for the Urban Authorities was being administered under the provisions of the Local Government Provident Act (CAP 292), while Municipalities were also provided separately under the Municipalities and Public Authorities Provident Fund Act (CAP 291).
Following the amendment of the Pensions Act in 1994, the provision of pensions to both Urban Authorities and Municipality employees was brought under the purview of the Pensions Act, which requires that all Local Government (Urban Authorities and Municipalities alike) should provide for the pensions of their employees. Subsequently, the responsibility of administering and managing pensions for local government was transferred to the Ministry of Public Service.
It is important to note that the above public pensions system in Uganda did not cover all public servants. As such Members of Parliament, being part of the group not catered for, decided to push and legislated to make a provision for their own members. The Parliamentary Pensions Act No.6 of 2007 was passed to benefit legislators effective from those who served in the 6th Parliament (i.e., from 2001). The Act a hybrid contributory scheme, covers the members of Parliament and the members of staff of Parliament. It establishes a parliamentary pension fund, for the payment or granting of pensions or retirement benefits to its members. Section 6(1), requires that 15% of the members’ pensionable emoluments are deducted as contributions to the pension fund, while government contributes 30% 18 for each member.
LECTURE 5
CONDITIONS OF WORK (HEALTH AND SAFETY AT WORK)
1.0 OCCUPATIONAL HEALTH & SAFETY
Article 39 of the Constitution provides for the right to a clean and healthy environment. The Occupational Safety and Health Act imposes an obligation on employers to ensure the safety of employees at work. They are thus required to put in place measures for the achievement of this purpose e.g. provision of protective gear against the effect of pollution, to monitor and control the release of dangerous substances into the environment, to supervise the health of workers who are exposed to dangerous hazards due to pollution and other harmful agents e.g. through periodic medical examination, keeping medical records of workers, ensuring that work premises remain safe and without risk to health, displaying safety precautions etc.
The Act requires workplaces to be kept in a clean state to have suitable lighting to ensure that buildings at a work place are of sound construction, to have adequate supply of wholesome drinking water accessible to by all workers, adequate facilities for taking meals, a first aid room etc.
The administration and enforcement of the provisions of the Act is entrusted to the Commissioner for Occupational Health and Safety and inspectors. Their role is, with the assistance and cooperation of the occupier of the work place to enter into work premises to ensure that employers are implementing the requirements of the Act.
Orientation provides employees with necessary safety information about their job and tasks, informs them of specific details about workplace hazards and provides an opportunity to learn about the company and their colleagues, ask questions and to clarify new or confusing information.
New employees starting with any entity will have expectations about the workplace culture and the emphasis on the safety orientation they receive will be reflected in their work performance, their eagerness to learn and their willingness to contribute to a safe and healthy workplace.
LECTURE 6
WORKERS COMPENSATION.
1.0 WORKERS’ COMPENSATION
The Workers’ Compensation Act was intended to ensure that workers injured in the course of the employment receive compensation from their employers. The Act defines an employer as the Government of Uganda, any person incorporated or unincorporated, association or partnership, which directly engages a worker or which, in respect of any worker, carries on the business of hiring out his or her services. The Act applies to all employment within Uganda and to workers employed by or under the Uganda Government in the same way and to the same extent as if the employer were a private person, but not to active members of the armed forces. Workers’ compensation is a legal remedy that covers medical expenses and wage loss for employees who have been injured in the course and scope of their employment. An employee must report any work-related injury or illness to the supervisor immediately or other personnel of the organisation.
Employer’s Liability
If personal injury by accident arises out of and in the course of a worker’s employment, the injured worker’s employer shall be liable to pay compensation in accordance with this Act [S. 3]. An act shall be deemed to be done out of and in the course of employment when a worker acts to protect any person on the employer’s premises whom the worker believes to be injured or imperiled, or when a worker acts to protect property on the employer’s premises.
Any personal injury by accident arising while the employee is travelling directly to or from his or her place of work for the purpose of employment shall be deemed to be an accident arising out of and in the course of his or her employment. It shall be for the employee who suffers injury by accident arising while travelling to or from his or her place of work to show that such travel was direct. Compensation shall be payable under this section whether or not the incapacity or death of the worker was due to the recklessness or negligence of the worker or otherwise.
Any accident arising in the course of employment shall, unless the contrary is proved, be presumed to arise out of employment. Because of this liability, the Act requires every employer to insure and keep himself or herself insured in respect of any liability which he or she may incur under the Act to any worker employed by him or her.
1.2 Computation of Compensation
The Act details the method of computation of the amount to be compensated. The basis of the computation is the nature of the injury alongside monthly earnings of the affected worker and whether or not the deceased worker has left behind family members who are dependent on his earnings.
The word injury is defined to include an accident and a disease mentioned under the Act; the injury may be a fatal one or it may be one of a temporary or permanent nature, which incapacitates a worker for any employment which he or she was capable of undertaking at the time when the accident occurred.
The word earnings is defined to include wages and any allowances paid by the employer to the worker, including the value of any food, accommodation or benefit in kind. If the worker is killed as a result of an accident for which the employer has liability under this Act, the dependants (if any) of the deceased may recover from the employer the expenses of medical treatment of the deceased, burial of the deceased and expenses incidental to the medical treatment and burial of the deceased.
The Act further allows a worker to bring legal proceedings against the employer to recover damages from him in respect of the injury notwithstanding the fact that he has been compensated in accordance with the provisions of the Act. However, the amount of compensation which he or she has been awarded under this Act shall be taken into account in the assessment of his or her loss. [S.17]. This provision was meant to prevent double compensation and therefore unjust enrichment on the part of the injured worker.
LECTURE 7
WORKERS UNIONS AND EMPLOYERS UNION.
COLLECTIVE LABOUR RELATIONSHIPS
1.0 Collective Bargaining:
By collective bargaining we mean the process of negotiation between an employer or group of employers on the one hand and one or more Trade Unions on the other which is designed to produce collective agreements.
At a technical level, there are two important functions of collective agreements
1. Procedural function or contractual function which is the function of regulating the relationship between trade unions and associations of employers;
2. The normative or the rule making function which consists of the terms and conditions applicable to individual workers; the idea of the joint employment relationship backed by certain kinds of sanctions. In the case of collective bargaining there are consultation but there is consultation in which the employer asks unilaterally but does not have to take that opinion.
Historically collective bargaining is an accommodation between two warring parties the employers and the employees. When the employees collect themselves into trade unions they can confront an employer and usurp their interests better because of the strength in numbers. These two forces are always at loggerheads.
The first and most important function of collective bargaining is maintenance of industrial peace because if there was no collective bargaining what workers want without the trade unions the employers will not grant and the workers can either go on strike or resort to destroying equipment. The two sides are able to advance their interest through a peaceful negotiations and keeping of peace. Behind every arrangement for collective bargaining there is a peace settlement.
Collective Bargaining facilitates joint regulations at the work place or labour participation in management. When employers agree to negotiate with Trade Unions, they are saying that there are areas of management decision making which will not be done unilaterally and only with consultation with trade unions. Industrial democracy becomes an important function.
Conflict resolution: in society distinct groups have interests that are always conflicting with others. These conflicts rear their head in realistic circumstances which must be addressed and resolved. The two sides agree to resolve the conflicts through collective bargaining.
Effective management of confrontation
Social regulation – society must have a framework with which to define rights and duties of employers and employees. Just like the law collective bargaining helps in social regulation in society.
Collective bargaining performs the role of law making. As …. Explains the social and legal effect of a collective agreement is two fold
(a) It is a peace treaty
(b) It is a law making treaty – it creates terms of employment
1.1 The development of collective bargaining
The terminology was invented in Britain and first used by a legal historian in 1891. Although there was evidence of by nascent traders it is basically a product of industrial revolution. Major trade unions developed in the wake of the industrial revolution. There were laws which reflection the pre industrial revolution days. From 1824 workers became free to form Trade Unions with the repeal of Anti Combination Legislation. Nevertheless it was not until 1950 when trade unions acquired immunity to be able to organise and form themselves and participate in collective bargaining.
Collective Bargaining in England developed outside legal framework. Essentially this was because courts were hostile to Trade Unions for a long time. Because of this hostilities,
In Kenya we were victims of the British in more ways than one. Among the other forms of victimisation is that from 1930’s we had the idea of collective bargaining imposed on us. In 1937 we had legislation that made trade unions develop. The influence of the colonial office in England, and having seen what Trade Unions could do in England, the government in 1930 the Secretary of State sent a dispatch requiring compulsory registration of Trade Unions and directing that Trade Unions be directed to issues of bread and butter and not on other important issues. In 1937 the Trade Unions Ordinance was passed which formed the basis for being able to negotiate with employers.
In 1940 the Trade Dispute Arbitration and Enquiries Ordinance was enacted. It was provided that the governor could settle trade disputes by way of arbitration and the governor was empowered to refer the disputes to an arbitration panel appointed by him. By this time it was acknowledged that Trade Unions already existed in Kenya. This legislation encouraged the governor to use the arrangements which were introduced or proposed by the parties themselves.
Certain developments were needed for trade unions to prosper
Workers should have the liberty to organise in independent trade unions
Employers should be able and willing to bargain with workers organised into trade unions
There should exist in terms of law and institutions a mechanism for the resolution of Trade Disputes.
These are 3 basic minimum conditions required to develop trade unions together with others passed in 1943 and 1952 which endeavoured to lay a basis for collective bargaining.
There are 4 things that may be useful
a)Institutional framework for bargaining
b)Procedure used
c)Levels of bargaining
d)Content of collective agreements.
In the tradition of voluntarism this matters have been left in the hands of trade unions to regulate. In Kenya we have tried to suggest to workers that collective bargaining is good for them. The government does not want to interfere. There is however an important role for the Minister of Labour in performing various roles to do with collective agreement. He participates and can intervene with the industrial court if the collective bargaining does not reflect govt policy under Section 4 and 5 of the Trade Disputes Act. He can compel trade unions and employers to agree with the agreements that they have entered into and he controls strikes and lock-outs.
1.2 LABOUR UNIONS AND OTHER SIMILAR ASSOCIATIONS IN UGANDA
Under the labour law, employees are free to join labour unions of their choice. This freedom is guaranteed both under the Constitution and the Labour Unions Act.
Article 29 (e) of the Constitution provides that every person shall have the right to freedom of association which includes freedom to form or join trade unions. S. 3 of the Labour Unions Act also provides that employees shall have a right to organize themselves in any labour union and may assist in running the labour union, bargain collectively through a representative of their own choice, withdraw their labour and take industrial action.
Meanwhile, under S. 4 the employer is barred by the Act from interfering with this right to associate otherwise if he does, he commits an offence under S.5 for which he is criminally liable.
Labour unions are considered an important actor in the process towards more sustainable consumption and production patterns. They offer an organisational platform for a large number of workers and are involved in numerous policy processes.
However, labour unions have traditionally focused their attention on job security and maintenance as well as work place issues. Conversely, environmental concerns and sustainable development are usually not high on the political agenda of labour unions.
LECTURE 8
1.0 TORTS AND EMPLOYMENT CONTRACTS
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 misjudegement, 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.
Constitutional Provisions.
Government Proceedings Act
Civil Procedure (Miscellaneous Provisions) Act.
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.
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
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 workside 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 its flammable.
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.
2.0 VICARIOUS LIABILITY OF THE EMPLOYER
When a person is injured by another, the rule at common law is that the injured party may sue the actual wrong doer. Where the wrong doer is an employee, the injured party may also have an action against the employer under the principal of vicarious liability. Although the employer did not personally commit the wrong, he may be responsible for all those who are employed by him.
The third party will usually sue the employer as he is usually in a better financial position to meet the claim for damages. Government is liable for the civil wrongs committed by its servants (S. 3(1)(a) of the Government Proceeding Act), but not generally to wrongs committed by a member of the UPDF (S. 4 of the Law Reform Miscellaneous Provisions Act).
The view is taken that, by employing a person, the employer makes it possible for him to commit a wrong. It is regarded as a normal business risk for which he would be wise to take out insurance. The rule is that the employer is vicariously liable for the torts (civil wrongs) of the employer that are committed within the course of his employment.
In Limbus v London General Ominbus Co 19 , a bus driver whilst racing a bus pulled in front of another rival omnibus, in order to obstruct it and caused an accident. The defendant company had forbidden racing with and obstructing of other omnibuses. Court held that, the defendants were liable citing that: “A master is liable for acts done by his servant in the course of his business and for his interest, even though they are tortuous and forbidden by the master.”
In contrast, in Beard v London General Ominbus Co 20, a bus conductor attempted to turn a bus around at the end of its route and in doing so he caused an accident. His employers were not liable since he was only employed to collect fairs and not to drive buses. Sometimes, a prohibition imposed by an employer on an employee will limit the scope of employment. Thus in Twine v Beans express CA 1946 , a driver employed by the defendants gave a lift to a person who was killed due to the employee’s negligent driving. The employee had been expressly forbidden to give lifts and a notice to this effect was displayed in the vehicle. It was held that the employer was not vicariously liable as the driver’s action was outside the scope of his employment and the injured person was deemed to be a trespasser
Where an employee who is on a journey deviates from the authorized route, it is a question of degree whether he has started on afresh journey (a frolic of his own) which relives the employer from liability.
LECTURE 9
MODES OF TERMINATION OF EMPLOYMENT
1.0 DISMISSAL AND TERMINATION
1.1 DISMISSAL AS A FORM OF TERMINATION
Dismissal is the most important method of bring employment to an end.
What is dismissal?
It is the exclusion of the employee from further employment with the intention of severing the relationship of employer and employee. We do not have a statutory regime relating to dismissal and our fallback position is the common law and doctrines of equity which guide is in matters of dismissals.
There are 3 kinds of dismissal known to the common law
1. Dismissal by notice
2. Dismissal for cause
3. Wrongful dismissal
All of which there are remedies.
DISMISSAL BY NOTICE
Most contracts of employment may be terminated by either party giving the necessary notice of termination. This is what is called dismissal by notice. Under the common law of employment, a dismissal on proper notice is lawful regardless of the motive behind it i.e. at common law there is no obligation upon the employer to give reasons for dismissal. Refer to Ridge v Baldwin [1964]A.C 40.
DISMISSAL FOR CAUSE
At common law an employer may dismiss an employee summarily i.e. without notice if he has sufficient cause to do so. This is called Dismissal for Cause. The right to dismiss summarily is explained on the ground that the conduct of the employee was such that it shows a repudiation by him of the contract of employment. To be able to dismiss an employee summarily the employee must have behaved in a way that led to his dismissal like stealing, going to work drank etc. each case must be treated on its merit. Refer to Jupiter General Insurance Co. V Shroff [1937] 3 A.E.R 67 in this case the privy council held that summary dismissal is a strong measure justified only in exceptional circumstances. The court also said that the test to be applied in determining whether a dismissal was justified must vary with the nature of the business and the position held by the employee. In Kenya the Employment Act helps by listing in Section 17 of the employment Act several grounds of misconduct that can lead to summary dismissal.
There are exceptions to the Notice and Summary Dismissal Rules
1. Statutory Restrictions – where a statute prescribes certain conditions which must be observed if a decision to dismiss is to be valid then failure to observe those conditions may render the decision a nullity. A good example is Section 62 of the Constitution which is on Judges tenure. The section also provides procedure for removal.
2. Contractual job security clauses – a contract of employment may impose its own conditions just like statutes. Employment contracts may contain express or implied terms which purport to provide guarantees of job security going beyond that provided by the common law right to notice. This can happen by guaranteeing in the contract that the employee will not be dismissed except in accordance with certain procedure or certain stated grounds. Most contracts today seem to provide that an employee is only to be dismissed if there is cause and provide procedure for dismissing. A contract of employment may omit the normal provision allowing the employer to terminate the contract by simply giving notice.
3. It is possible for a contract of employment to incorporate Terms of Disciplinary or Dismissal Procedures. This requires the employer to go through the procedure before he can dismiss.
WRONGFUL DISMISSAL
Found under the common law. Wrongful dismissal means dismissal of an employee in breach of his contract of employment. It is a common law concept. Wrongful dismissal arises in the following situations
1. If a contract is for a fixed period or is expressly stated to be terminable, only in certain ways and it is terminated before the term expires or in an improper way that constitutes wrongful dismissal;
2. Where the employer dismisses the employee with either no notice or inadequate notice again that is wrongful dismissal;
3. Where the employer purports to dismiss an employee for cause where the facts do not justify such action again this is wrongful dismissal.
1.2 REMEDIES FOR WRONGFUL DISMISSAL/BREACH OF EMPLOYMENT CONTRACT
If an employee is wrongfully dismissed the general rule is that his remedy lies in damages or in an appropriate case a quantum meruit action. There are certain exceptions in which other kinds of remedies may be available.
The remedy for damages is the most important remedy given by common law and equity for a number of reasons
1. In the case of most ordinary contracts of employment, it will be the only remedy available because specific performance or declaration of invalidity of dismissal will not normally be allowed by the common law the remedy is also important because the employee will not be allowed to claim wages in respect of the period following wrongful dismissal; in the ordinary course of employment an employee will not be granted the order of specific performance but it will be difficult to get a court to declare that dismissal is invalid, the court can declare a dismissal wrongful but not invalid. The employee must understand that he can only get damages if wrongfully dismiss. It should fall that the measure of damages obtained for wrongful dismissal is very important because it is the measure of protection of the security of employment at common law.
The basic principle underlying the assessment of compensatory damages both in contract and in tort is that of putting of the plaintiff in the position in which he would have been if he had not sustained the wrong. This is restitutio in integram. This principle has been applied in a very restrictive manner in the case of wrongful dismissal both as to the heads of damage which may be considered and as to the assessment of damages under those heads. Refer to the case of Addis V. Gramaphone Co. Ltd [1909] A.C 488 This case decided that injury to feelings and reputation cannot be taken to account in assessing damages for wrongful dismissal. This is an example of how restrictive the principle has been applied to wrongful dismissal.
Damages in respect of loss of earnings are limited to earnings during the period of notice required to terminate the contract. There is a presumption that all contracts can be terminated by giving notice so that employees will expect notice before notice.
Failure to compensate adequately for the loss of fringe benefits and seniority rights.
In spite of the general principle in contract of restitutio in integram when it comes to wrongful dismissal it is applied in a different manner.
Where an employee is wrongfully dismissed he is entitled subject to mitigation to damages equivalent to the wages he would have earned under the contract from the date of dismissal to the end of the contract.
There are employees who are employed under a fixed term of contract. If an employee is working under a fixed term contract which does not contain a notice clause, then the employee is prima facie entitled to receive net salary for the unexpired period of the contract. Read Friedlan the contract of employment page 278 – 292. Benefits other than salary will be paid depending on whether the benefits were discretionary as opposed to the employee as of right.
The employee is under a duty to mitigate his/her loss. Mitigation is a question of fact.
Rules of mitigation are characterised into two
1. Rule as to
2. Rule as to avoided loss – the loss that the employee could have avoided but he didn’t.
In Addis an employee who was paid at a fixed salary plus commission was wrongfully dismissed and he claimed damages under the following heads;
I) Salary for the 6 month notice period
II) Reasonable commission for a 6 month period
III) Damages for the humiliating manner of dismissal
Iv) Damages for loss of reputation leading to future difficulty in obtaining employment
The House of Lord Held that only I and II were recoverable.
There are a number of explanations why injunctions are not available
The basis of this rule is the equitable doctrine of reciprocity – this doctrine refuses specific performance to one party if the same remedy cannot be given to the other one. Since the employer cannot be compelled to retain an employee as a wage slave, it would be unfair to compel the employer to retain the employee. It is also explained that there is need to maintain mutual confidence which is lost upon dismissal.
It is also explained that damages are an adequate remedy and therefore reinstatement is not necessary. The general rule is that remedy of specific performance cannot be granted if the court has to supervise.
There has been the claim that it would be unfair and inappropriate to allow reinstatement of employees but however there are exceptions to that general rule.
1. A negative restrained clause - where the employee has agreed to do certain things like not work for a competitor for a few years after leaving employment;
2. Where the dismissal is a nullity – in certain situations a dismissed employee may invoke administrative law remedies e.g. judicial review etc and to argue that his dismissal is invalid. If this argument is accepted the legal result is that there was no effective dismissal and so the contract of employment continues or it is indirectly enforced. This represent the encroachment of the principles if administrative law upon the private law of contract of employment. The two principle basis for challenge are that
(i) the dismissal was contrary to the rules of natural justice
(ii) principle situations in which employees have argued that the dismissal was in some way ultra vires the powers of the dismissing body.
Vine V. National Labour Board [1957] A C 488
Ridge V. Baldwin
The courts have recognise that some employees have the benefit of especially protected status which justifies a declaration of invalidity of wrongful dismissal and that in certain types of employment wrongful dismissal may be treated as ultra vires the employing body and void upon that ground. In the case of Ridge a Police Chief Constable was dismissed without the benefit of being heard and the court believed on an old English rule… the Court held Ridge’s dismissal to be a nullity as he had not been heard.
IN vine by legislation there was a national dock labour board and the applicant lost his registration as a docker on disciplinary grounds but it was not the labour board that disciplined him but a committee which did not have the power to do it and the court held the action to be ultra vires.
If one is an officer holder then one is entitled to a special hearing and on this basis some dismissals have been declared to be a nullity.
In England, the common law approach of termination has been abandoned and all employees are now protected in their employment and this right created by statute now requires that dismissal must be for cause. Not only do the courts examine the procedure used in dismissal but they go behind to find out the cause and reasons for the dismissal. An employee is entitled to benefits including reinstatement into employment. The legislation protecting employment introduced …every employee now has a right not to be unfairly dismissed.
In Kenya we have had statutory developments.
The Trade Act through 1971 amendment at S. 15 empowers the industrial court to reinstate wrongfully dismissed employees. It also increases the compensation payable to dismissed employees to a maximum of 12 months monetary wages. The discretionary nature of this arrangement is that there is no guidance as to how the industrial court is to exercise this power. It is at at the court’s discretion. There is no base on which to proceed. It has been the tradition of the Industrial Court Judges to give very short judgments that are not reasoned. They don’t explain the jurisprudence behind their judgments. Apart from the provisions of S 15 it is a criminal offence for an employer to refuse to reinstate if it is so ordered by the Industrial Court. the industrial court cannot cite for contempt and has to use criminal law to enforce. There is a fine of 2000 shillings per month for failure to obey the orders. The industrial court has established the necessity of justifiable cause for dismissal so that it is not enough for the employer to say that he followed the rules and is prepared to pay the damages in lieu. Cockar reasons that labour practices must be fair and there must be a cause for dismissing them and also he argues that the principles of good industrial relations dictate that employers must be fair to their employees.
In his book the industrial court Cockar explains that the court grants remedies to employees for wrongful dismissal if in terminating services for employees the management’s action was wanting in the following instances
1. Where there is want of good faith;
2. Where there is victimisation or unfair labour practices;
3. Where there is violation of the principles of natural justice;
4. When on the materials the finding is completely baseless or perverse;
5. Where the employer has been unduly harsh for example where the employer chooses to terminate an employee where a warning would have been sufficient or a demotion.
Industrial Court Cause No. 23 of 1972 Kenya Union of Commercial Food and Allied Workers V. Kenya Cooperative Creamaries
Kenya Industrial Court Page 112 – 114 by Justice Cockar – a discussion of the above case.
1.3 General Provisions
In recognition of the frequent dismissals of employers from work especially in the Ugandan private sector, the framers of the Employment Act came up with major safeguards against both unlawful or unfair termination and unlawful dismissal. The Act provides for certain requirements that must be complied with before a contract of service can be terminated. The one loophole in the Act is failure to make a clear distinction between termination and dismissal, the Act appears to use the two words interchangeably. “Termination of Employment” means the discharge of an employee from an employment at the initiative of the employer for justifiable reasons other than misconduct, such as, expiry of contract, attainment of retirement age. On the other hand, Dismissal from Employment” means the discharge of an employee from employment at the initiative of his or her employer when the said employee has committed verifiable misconduct.”
An employment contract can be terminated in a number of ways which include the following [S.65].
• The contract can be terminated by the employer with notice
• Where it is a contract of service, being a contract for a fixed term of task, ends with the expiry of the specified term or the completion of the specific task [unless it is renewed]
• Where the contract is ended with or without notice on the part of the employee as a consequence of unreasonable conduct on the part of the employer towards him
• Where the contract is ended by the employee in circumstances where the employee has received notice from the employer but before the expiry of that notice. A contract of service shall not be terminated by an employer unless he or she gives notice to the employee except, where the contract of employment is summarily terminated in accordance with S. 69 [below] or where the reason for termination is attainment of retirement age, [S.58]. The notice must be in writing and shall be in a form and language that the employee to whom it relates can reasonably be expected to understand. The period of notice depends on the period for which the worker has been employed and the notice periods are specified under the Act. No employer has the right to terminate a contract of service with less notice than that to which the employee is entitled by any statutory provision or contractual term [S.69 (2)]. However, nothing shall prevent an employee from accepting payment in lieu of notice.
An employer shall before reaching a decision to dismiss an employee on grounds of misconduct or poor performance explain to him the reason for dismissal in a language the employee may reasonably be expected to understand. The employee is entitled to have another person of his or her choice present during the explanation. The employer shall in turn give the employee a hearing and consider any representations which the employee and the person if any chosen by him may make. Whether the dismissal is a summary dismissal which is justified or whether it is a fair dismissal, the employer must have given the employee a reasonable time within which to prepare these representations. Where these requirements are not complied with, the employee may lodge a complaint with the labour officer for redress [S. 66]. Irrespective of whether any dismissal which is a summary dismissal is justified or whether it is fair an employer who fails to comply with this section is liable to pay the employee a sum equivalent to four weeks net pay. (S.66(4)) 13.2 Unfair Reasons for Termination Notwithstanding the above, it is vital to note that not all reasons that the employer may give are fair reasons to justify termination of a contract. Thus under S. 75 of the Act, a list of reasons which may be considered as unfair is given i.e. • A female employee’s pregnancy or any reason connected with her pregnancy • The fact that an employee took, or proposed to take, any leave to which he was entitled to under the law or a contract • An employee’s membership or proposed membership of a labour union • Participation or proposed participation in the activities of a labour union outside working hours, or with the consent of the employer within working hours • An employee’s refusal or proposed refusal to join or withdraw from a labour union • An employee’s race, sex, colour, religion, political union or affiliation, nationality, social origin, marital status, HIV status or disability. • An employee’s temporary absence from work for any period up to 3 months or reliable grounds including illness or injury • An employee’s initiation or proposed initiation of a complaint or other legal proceedings against his employer The organization or intended organization of a strike or other form of industrial action where the strike of industrial action is lawful. [S.76]
1.4 Summary Dismissal
An employer is entitled to dismiss summarily and the dismissal shall be termed justified where the employee has by his or her conduct indicated that he has fundamentally broken his obligations under the contract of service [S. 69]. This would arise from serious misconduct being manifested by the employee. Summary dismissal is deemed to have taken place when the employer terminates the service of an employee without notice or with less notice than that to which the employee is entitled by any statutory provision or by a contractual term. This is a new provision because formerly summary dismissal meant only dismissal without notice. Where the employment contract does not specify the grounds for summary dismissal what constitutes serious misconduct for these purposes depends on the nature of the job in question and the terms of the contract. Certain actions almost invariably would be regarded as a serious misconduct, like deliberately destroying the employer’s property, stealing from the employer and gross insubordination. In Eletu v Uganda Airlines Corporation 22 ,
it was held that
“at common law, to justify such dismissal, a breach of duty must be serious one, a breach amounting in effect to repudiation by the servant of his obligations under the contract of employment such as disobedience of lawful orders, drunkenness, immorality, assaulting fellow workers, incompetence and neglect.”
It was held further that:
“there is no fixed rule of law defining the degree of misconduct which would justify summary dismissal. However summary dismissal is a strong measure to be justified only in exceptional circumstances. The test to be applied in determining whether a summary dismissal was justified is whether misconduct leading to summary dismissal goes to the root of the contract so as to indicate unwillingness to continue to be bound by the original terms of the contract.”
Lecture 10
1.0 WORLD TRADE ORGANISATION AND LABOUR ISSUES
Social issues and respect of labor standards Convention 87 of 1998 International Labor Market International Labor Organisation Member states are obliged to report on ratification and non ratification and a country which fails to do so must give reasons. Disparity or uneven ratification of member countries The influence of capitalism as opposed to extreme socialism led to the drafting of the ILO Conventions and Recommendations as opposed to statutes.
The ILO was set up in 1919 with one single objective of social justice, and through the ILO, we have seen attempts to address labor challenges through conventions, recommendations, technical assistance, issuance of reports and sometimes through lobbying of governments. The ILO is a UN specialized agency which was established under the Versailles Treaty. It is a tripartite organization comprising of 3 organs of the governing body. It has the international conference which acts as the secretariat, and this is constituted by representatives of government, member states, employers, and employees.
The ILO has a special procedure which provides a forum for handling complaints of breaches of labour issues by member states. Under the ILO, we also have;
1. The Committee of Experts on the Application of Conventions and Recommendations. This committee gives interpretation of the recommendations of the ILO.
2. The ILO Conference Tripartite Committee on the Application of Recommendations and Conventions.
3. ILO Reporting Obligations on Member States, i.e on the ratified conventions, unratified conventions, etc. Through the ILO, the world has received key conventions which continue to shape labor law globally. It has also made some recommendations.
1.1 Key Conventions.
1- ILO Convention 87 on Association
2- ILO Convention 98 on Collective Bargaining.
The conventions are social inclusive. Responsible and responsive corporate investment. International labour law should be in a responsible and responsive manner.
1944 May 26th Philadelphia Declaration has been referred to as the new ILO. The key statement made was that labour is not a commodity. No more exploitation of labour on the ground of payment. It was emphasized that there should not only be security of labour but social security protection. It should also cater for times when the employer is not productive due to age.
1.2 1998 Declaration on Fundamental Principles and Rights at work;
it commits member states to respect and promote principles and rights in 4 categories.
i. Freedom of association and effective recognition of the right to collective bargaining.
ii. Elimination of forced/compulsory labour. However, exceptions are service in military forces.
iii. Abolition of child labour iv. Elimination of discrimination in respect of employment and occupation.
1.3 Challenges of ILO
• Economic challenges
• Political challenges
• In some cases, cultural challenges
• Part 8 of the Versailles Treaty- approval of two thirds members is required
• The conventions don’t have automatic force of law i.e they have to be ratified by member states
• Supervision mechanism is weak i.e it is logistical and man power.
• The African states interests is always at variance with the core objects of ILO. The literature is that African states join ILO for technical assistance and they don’t want to be criticized for challenges back home hence it becomes political and they can threaten to pull out of ILO.
• Economic Challenges.
• The other challenge is the pilot success has been economic activities i.e multinational corporations look for playing fields which are less regulated, where the labour standards are low in order to minimize costs. This has led to the global compact where multinational corporations agree with ILO to be responsive to labour standards and environmental considerations at UN level. Also the OECD which tries to encourage responsiveness with multinationals.
SAMPLE EMPLOYMENT CONTRACT
THIS AGREEMENT made as of the ______day of__________________, 20__ , between [name of employer] a organisation registered and licensed under the laws of the Republic of Uganda, and having its principal place of business at _______________________ (the "Employer"); and [name of employee], of the City of ____________________in the Republic of Uganda (the "Employee").
WHEREAS the Employer desires to obtain the benefit of the services of the Employee, and the Employee desires to render such services on the terms and conditions set forth.
IN CONSIDERATION of the promises and other good and valuable consideration (the sufficiency and receipt of which are hereby acknowledged) the parties agree as follows:
Employment
An Employee agrees that he/she will at all times faithfully, industriously, and to the best of his skill, ability, experience and talents, perform all of the duties required of his position. In carrying out these duties and responsibilities, the Employee shall comply with all Employer policies, procedures, rules and regulations, both written and oral, as are announced by the Employer from time to time. It is also understood and agreed to by the Employee that his assignment, duties and responsibilities and reporting arrangements may be changed by the Employer in its sole discretion without causing termination of this agreement.
2. Position Title As a _____________, the Employee is required to perform the following duties and undertake the following responsibilities in a professional manner. (a)………………………………………………………………………………………… (b)………………………………………………………………………………………… (c)………………………………………………………………………………………… (d)…………………………………………………………………………………………
(e) Other duties as may arise from time to time and as may be assigned to the employee.
3. Compensation (a) As full compensation for all services provided the employee shall be paid at the rate of ____. Such payments shall be subject to such normal statutory deductions by the Employer.
(b) (may wish to include bonus calculations or omit in order to exercise discretion). (c) The compensation mentioned in paragraph (a) above shall be review on an annual basis. (d) All reasonable expenses arising out of employment shall be reimbursed assuming the same have been authorized prior to being incurred and with the provision of appropriate receipts.
4. Vacation The Employee shall be entitled to vacations in the amount of ____ weeks per annum.
5. Benefits The Employer shall at its expense provide the Employee with the Health Plan that is currently in place or as may be in place from time to time.
6. Probation Period It is understood and agreed that the first six months (may vary) of employment shall constitute a probationary period during which period the Employer may, in its absolute discretion, terminate the Employee's employment, for any reason without notice or cause. This period can be extended for a period of ____ if the employer is not satisfied with the employee’s level of service.
7. Performance Reviews The Employee will be provided with a written performance appraisal at least once per year and the said appraisal will be reviewed at which time all aspects of the assessment can be fully discussed.
8. Termination
a. The Employee may at any time terminate this agreement and his employment by giving not less than two weeks written notice to the Employer.
b. The Employer may terminate this Agreement and the Employee’s employment at any time, without notice or payment in lieu of notice, for sufficient cause.
c. The Employer may terminate the employment of the Employee at any time without the requirement to show sufficient cause pursuant to (b) above, provided the Employer pays to the Employee an amount as required by the Employment Act 2006 or other such legislation as may be in effect at the time of termination. This payment shall constitute the employees entire entitlement arising from said termination.
d. The employee agrees to return any property of the employer at the time of termination. 9. Non- Competition a. It is further acknowledged and agreed that following termination of the employee’s employment with ________________ for any reason the employee shall not hire or attempt to hire any current employees of _________________.
9. Non- Competition
a. It is further acknowledged and agreed that following termination of the employee’s employment with ________________ for any reason the employee shall not hire or attempt to hire any current employees of _________________.
b. It is further acknowledged and agreed that following termination of the employee’s employment with ________________ for any reason the employee shall not solicit business from current clients or clients who have retained ______________ in the 6 month period immediately preceding the employee’s termination.
10. Laws This agreement shall be governed by the laws of Uganda
12. Entire Agreement This agreement contains the entire agreement between the parties, superseding in all respects any and all prior oral or written agreements or understandings pertaining to the employment of the Employee by the Employer and shall be amended or modified only by written instrument signed by both of the parties hereto.
13. Severability The parties hereto agree that in the event of any part thereof of this agreement is held to be unenforceable or invalid then the said part shall be struck and all remaining provisions shall remain in full force and effect.
IN WITNESS WHEREOF the Employer has caused this agreement to be executed by its duly authorized officers and the Employee has set his hand as of the date first above written. SIGNED, SEALED AND DELIVERED in the presence of:
……………………………………………………………………………….
[Name of employee]
………………………………………………………………………………
[Signature of Employee]
………………………………………………………………………………
[Name of Employer Rep]
…………………………………………………………………………………..
[Signature of Employer Rep]
[Title]
Lecture Notes prepared by Robert Tibaruha
Grotius School of Law, Uganda Pentecostal University, Fort Portal
Email: rtibaruha@gmail.com
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