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HOW TO HUNDLE UNLAWFUL DISMISSAL

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By NATUMANYA BRIGHT HOW TO HANDLE UNLAWFUL DISMISSAL. BACKGROUND Employment is the backbone of our social structure and the end game of the education system. It has permeated its place in the society as a bedrock of survival and a catalyst for human
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  By NATUMANYA BRIGHT HOW TO HANDLE UNLAWFUL DISMISSAL.B  ACKGROUND Employment is the backbone of our social structure and theend game of the education system. It has permeated its placein the society as a bedrock of survival and a catalyst for humandevelopment.This conundrum arose mainly as a result of the birth of monetised economies fuelled by capitalists’ desires to makemore prots at the expense of human labour (save for recentinstances of mechanised labour markets).Even in the late 1970s when BBA was introduced in oureducation system, it aimed at creating money-managersinstead of money-makers. This meant that young men andwomen would have to undergo training on how to managesomeone’s money in the form of employment instead of training them how to be entrepreneurs and money makers.This problem has spread across other courses taught inschools and other institutions of learning creating a slavesociety of pay checks as remuneration for the services oered.It is against that backdrop that I found it pertinent to writeabout the process of dismissal from employment which in mostcases is a humiliating encounter.The way in which both the employer and employee handletheir ‘divorce’ is important to their future relationship andreputation.  STAGES OF UNLAWFUL DISMISSAL. When the employer-employee relationship goes sour, bothparties will be alive to that fact. What remains in abeyance ishow the parties can part ways in peace and without causingnancial distress, and putting their reputations into disrepute. This would directly or indirectly aect the company marketand operations as well as employee’s employability rateselsewhere.  However, the above may not always be true for some entitiesor individuals since they just dismiss summarily under the oldcommon law adage that he who has the power to hire, has thepower to re. Below I discuss the stages of wrongful dismissal brieyexplaining how the employee should handle each stage whenthat time comes as well as the worth of a labour lawsuit claimin respect of the same.I must stress the fact that in most cases that time is as hard aslosing a loved one and what the employee should look out foris a supporting family and friends so that they can go throughthis rather daunting economic and psychological suering. 1. DISMISSAL PROCESS. It should be understood at this stage that employment is amere contract between the employer and the employee. Thismeans that recourse will be made to the terms of this contractand the company policy manual at the time of dismissal.However, Employment Act, 2006, which is emphatic about thisprocess should guide the parties while exercising their powersespecially the employer while making an administrativedecision to dismiss the employee for whatever reason.Section 2 of the Employment Act draws a distinction betweendismissal and termination from employment. Dismissal fromemployment means the discharge of an employee fromemployment at the initiative of his or her employer when thesaid employee has committed veriable misconduct whereastermination of employment means the discharge of anemployee from employment at the initiative of an employer for justiable reasons other than misconduct, such as, expiry of contract, attainment of retirement age, etc.Dismissing an employee is a process which if not properlyfollowed can lead to compensatory and other claims from theemployee who has been dismissed. This process starts with allegations of certain misconductcommitted by the employee which will require investigationsby the employer and the employee may be tasked to make  statements of what transpired or to physically appear before adisciplinary hearing where the rights of employee must be wellelaborated to him or her.The disciplinary committee thereafter prepares a report withminutes and reasons of dismissing the employee, if that be thedecision. Though many organisations have a right of appealwithin the organisation structures which may vary thedecision. Article 42 of the Constitution of the Republic of Uganda, 1995,states that any person appearing before any administrativeoicial or body has a right to be treated justly and fairly andhas a right to apply to courts of law in respect of that decision.This constitutional provision is buttressed by section 66 of theEmployment Act that requires an employer, before reaching adecision to dismiss an employee, on grounds of misconduct orpoor performance, to explain to the employee in the languagethe employee may reasonably be expected to understand, thereason for which the employer is considering dismissal and theemployee is entitled to have another person of his choicepresent during the explanation.In that regard, an employer shall before making a decision todismiss an employee, hear and consider the employee or anyperson he or she chooses to represent him or her, for instancea lawyer, who shall be accorded enough time to prepare thepresentation. An employer who fails to comply with this procedure,irrespective of whether the employee is guilty or not, is liableto pay the employee a sum equivalent to four weeks’ net pay(the section states four weeks’ net pay, but court can awardmore especially for employees paid on monthly basis) Also remember that when you quit the employment beforethey dismiss you, it is highly unlikely that you will get some of the benets or remedies.  2. H IRING    A    LAWYER  . Once the employer has conrmed your dismissal fromemployment, the next step is to get a lawyer that has time tohandle your case.Wrongful dismissal cases can take quite some time andresources before they are concluded, unless a settlement isreached especially where the employer is not willing tocooperate. Section 66(5) of the Employment Act gives the employee whohas been dismissed locus to lodge a complaint to the labouroicer alleging failure on the part of the employer to complywith the laid down procedure of dismissal. This complaint mayas well be joined with any other complaint alleging unjustiedsummary dismissal or unfair dismissal.The labour oicer has power to order for the payment of thefour weeks’ net pay provide by the Act as well as make anyother order in respect of any other award or decision reachedby the employer. 3. F  ACT   FINDING . Once a law rm has been hired, it will undertake extensive factnding by going through the story verbally with a clientseveral times and take notes. It is also prudent practice for thelawyer to ask a client to write a timeline of events.It is prudent and advisable that employees always keep copiesof necessary documents, messages, emails and any otherrelevant information from the start of their employment inorder to avoid applications for discovery which do notguarantee that all documents requested will be availed to youby the employer as well as saving time within which toconclude the case. 4. D EMAND   LETTER  . In an attempt to bring to the attention of the employer yourclaim for wrongful dismissal, a demand letter will be sent tothe employer containing all your claims.  This arises after having identied legal claims in the dismissalprocess and oer to settle the matter by negotiating with theemployer.Section 80 of the Employment Act allows parties to, in writing,waive the option of lodging a complaint to the labour oicerand instead settle the labour dispute themselves.However, the employee should not hasten to accept theemployer’s meagre oer if they have a good case, they can geta lot of money in compensation. But the decision whether tosettle or not to settle should be assessed on the merits of thecase because sometimes it is better to settle at the earliestthan later. 5. F ILING    A    LABOUR    COMPLAINT . In case parties fail to reach any settlement then a labourcomplaint can be led to the labour oicer to decide thematter. Section 13 of the Employment Act, gives the labour oicerpower to investigate and dispose of complaints arising fromlabour disputes. Section 93(2) of the Act gives the labour oicer jurisdiction tohear and settle labour disputes by way of conciliation ormediation. Where within Ninety days the labour oicer has notissued a decision or dismissed the complaint, the complainantmay pursue the claim in the industrial court.Section 94(1) states that any party aggrieved by the decisionof the labour oicer may appeal to the Industrial court whichmust be on question of law and with leave of the industrialcourt. At this point court will make judgment according to themerits of the case and how well the lawyers have presented your case.However, subsection 6 limits the time within which to lodgethe complaint to the labour oicer to three months after thedate of the dismissal. Further, section 70 (1) of the Actprovides for a complaint to the labour oicer in case of summary dismissal by the employee to be lodged within six
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