It is ten years since the reestablishment of the Industrial court as the main court to promote equity, effective and expeditious settlement of labour disputes, industrial harmony and improved working conditions.
In the first part of this series, there was an outcry over the inefficiency of the courts. In the second and last part, SULAIMAN KAKAIRE hears from the court’s judges, workers’ unions and other technical experts on what can make the court more efficient.
In the process of seeking justice from the Industrial court, one lawyer, who declined to be named for fear of compromising his client’s interest since he has a matter pending before the court, told us that he has faced some of the toughest tests to his patience.
From experience, he said, the requirement of filing labour matters in the Industrial court as opposed to exploring the option of filing in the ordinary courts has contributed to backlog in two ways.
“Firstly, for one to access the court, the matter has to start from the labour officer. But this is problematic in a way that most of the labour officers do not have the competence to handle these cases and as such references end up in the industrial court,” he said.
This lawyer gave us an example of a matter he has handled since 2014 to date.
“When I tried to file this matter, which is to the tune of Shs1.2 billion, in the civil division, I was told to file in the Industrial court. So I had to start with the Labour officer at Kampala Capital City Authority. For almost a year and a half, the labour officer could not resolve the matter; so, he referred the case to the Industrial court at the beginning of this year.”
This lawyer suggests that the option should be done away with since the labour officers do not have capacity to resolve labour disputes.
“They are not trained in labour law. They are social scientists. How do you expect them to resolve labour law matters? In fact, most claims from them have ended up at appeal to Industrial court,” he said.
When this lawyer’s case was referred to the Industrial court early this year, he has not yet got a date for the hearing since the court is out of station.
“The court will not be sitting in Kampala until next year. It has been listening to claims from Masaka, Lira and Gulu. So, this is another way backlog is created,” the lawyer said.
According to the figures, there are 508 references registered in the court since July 2014, when the court started operating but of these only 35 have been disposed of.
The Observer has independently looked at decisions where the competence of labour officers has come into question. These include the case of Action Aid Uganda against David Tibekanga, where court held that the labour officer did not follow proper procedure in handling the case.
“It seems to us that the Labour Officer acted like an appellate court. Nowhere on the record is there any evidence adduced by either the claimant or the respondent after mediation failed…. We think this was inherently irregular and illegal. As a first court, the Labour Officer is expected to call evidence of both parties and allow cross examination and all this must be on the record.”
However, Wandera defends his labour officers by arguing that labour claims are two-fold. He said, “There are matters that of interests and rights; for the former it is about interests of employees while the latter is about rights. In the interest-based matters, it is not about law while the second is about law.
Wandera also said that “what we are doing is to do capacity building for labour officers” so that they have a better grasp of both sets of claims.
In addition, mediation is one of the other options that the courts look at as an option to clear backlog. But the court has only one mediator, which in away explains the efficiency of mediation option. Out of 107 matters that have been sent to mediation since the court started, only 41 have been completed. This year alone, 71 cases were sent to mediation but only 32 have been completed.
OLD WINE IN NEW BOTTLES
Besides the challenges of access to court and delayed justice, there are also mixed feelings as regards to the types of reliefs the court grants. Prof Jean Barya argues that the court’s attitude seems to be like that of a common law court yet it is a court of equity.
“It is good that the court has started giving aggravated damages,[and] severance allowance but the practice of not awarding costs is dangerous because it means that the litigants, particularly employees, will not have access to legal services. Where they are to get it they will be made to share the court award with the lawyers. This is not good. Award of costs should be discretionary, based on ability to pay, condition of the employee and circumstances of termination,” said
Barya, who is a lecturer of jurisprudence at Makerere University. On his part, Ssemakadde argues that the court has stayed by the Supreme court approach in award of reliefs rather than embracing the international standards set by International Labor Organisation and as espoused by our Employment Act, 2006.
“For instance, I have not come across any decision where they have reinstated a worker whose services were terminated unlawfully. They still follow the Supreme court decisions yet that common law position has been changed by section 71(5) (a) of the Employment Act,2006 that provides that if court finds that dismissal was unfair, the court may order the employer to reinstate the employee,” he said.
WINNERS OR LOSERS
On their part, workers groups say while they contended with the court’s performance, they think there is room for improvement. Dr Sam Lyomoki, the secretary general of the Confederation of Free Trade Unions, told The Observer that the court has been judicious in handling workers’ cases.
“In most judgments that have come from the court workers have been the victors and this is very good in strengthening our people to enforce their labour rights,” Lyomoki said.
However, while commenting on the backlog of cases before the court, Lyomoki, who is also a workers MP, said the situation is bad and is largely due to underfunding.
“The court is under facilitated. Government has not been remitting enough resources to the court. There is a time it could not sit because the funds were not available. Sometimes panellists have been sitting without getting allowances. They should be applauded for handling those cases considering the resources they get,” he said.
Lyomoki added that they are advocating for amendments to have a single judge sit in a case, more judges appointed and more circuits of the court opened up across the country.
“This has got financial implications but we hope that it will happen,” he said.
Prof Barya urged the government and other authorities to handle the matter quickly because the inefficiency of the court benefits employers at the expense of employees.
“Whenever the employees cannot get access to justice in time, it perpetrates impunity and employers as the abusers are victors. Besides, some of the workers’ rights are enjoyed at the expense of profits,” Barya said.
However, the head of the Federation of Uganda Employers, Douglas Opio, rebuts assumptions that employers are the beneficiaries.
“Without disputing the fact that the court has made significant contribution to improving industrial relations, the delays affect employers. Assume that there is a matter which required your attendance as MD but the matter could not be heard for one reason or another, in such a scenario isn’t the company making a loss?” he asked.
Opio gave us the case of Robert Taylor Versus Toyota Uganda where the car company’s directors had to regularly fly from the United Arab Emirates to Uganda but their matter could not be heard because the court was out of station.
According to Opio, during the first quarter of the courts operations, employers lost 80 percent of the cases. “This was a very great disappointment but the good thing is that we have been able to learn from those cases on how to improve our internal labour policies,” he said.
WHAT THE COURT SAYS
It is not only the court users who are concerned with the structure of the court. Currently, Chief Judge Ruhinda Asaph Ntengye and his co-judge, Lady Justice Linda Tumusiime Mugisha, have run to the constitutional court seeking for clarity on the terms and conditions of their status.
The two argue that whereas Article 129 of the Constitution looks at the court as subordinate to the High court, the administration of the court looks at differently.
“The new Industrial court is headed by judges at the level of the High court and Appeals from the court lie to the Court of Appeal.The provisions of the [Labour (Arbitration and Settlement) Act] envisage a clear intention by the parliament to create an adjudicatory body that functions parallel and not subordinate to the High court…The High court has administratively recognised the Industrial court as a specialised court operating parallel to the High court and transferred all employment matters formerly filed in the High court to the Industrial court,” reads a statement from the administration of the Industrial court.
Another matter of concern is that the judges in the court want their terms and conditions of service to be like those of the High court judges since they have the same qualifications. For instance, they want to serve until 65 years rather than the maximum of 10 years.
When asked to comment about their concerns, Sylvia Nabaggala, the registrar of the Industrial court, said that she cannot comment about a matter in court. However, she also intimated to The Observer that they have drawn up a set of proposals on how the court should operate.
“Everything is there in the petition and as to what can be done about our structural organisation we have submitted our proposals to the ministry. I cannot discuss that because the matter is confidential,” Nabaggala said.
WAY FORWARD
In a recent technical memorandum on Uganda labour administration and inspection needs assessment, International Labour Office – Geneva advised that the ministry of Labour should expedite the process of amending the Labour Disputes (Arbitration and Settlement) Act, 2006 to hasten the establishment of the Industrial court to better handle labour disputes and improve the overall efficiency of the labour administration system.
“In view of the number of districts in the country and in order to anticipate the tribunal’s workload and ensure the effective application of labour legislation, special labour sections should be established in territorial courts or consideration given to organising regular regional sittings of the court,” reads the report.
Other suggestions being proposed by the lawyers are amendment of the Labour Disputes (Arbitration and Settlement) Act, 2006 to have a single judge sit in a case, having the court’s legal status and that of the registrar streamlined.
Wandera told us that a memorandum suggesting amendment to the Labour Disputes (Arbitration and Settlement) Act, 2006 has been submitted to cabinet for consideration. However, he said he could not discuss its contents since it is a confidential document.
“What I have to tell you is that there are suggestions of how we can make the court efficient and all that is going to be considered,” he said.
skakaire@observer.ug
This article is a product of The Watchdog, a centre for investigative journalism at The Observer newspaper. It was prepared with the help of financial support from the African Centre for Media Excellence (ACME).