The Industrial Court in the adjudication of labour disputes.

Navigating the jurisdictional grey areas: The case for Industrial Court in the adjudication of labour disputes.

Nakalema Stella Maris*

Abstract

Employment disputes constitute the majority of cases handled by the judiciary annually. However, the effective resolution of such employment disputes by the industrial court is frustrated by the jurisdictional ambiguity surrounding the unlimited original jurisdiction of the High Court as well as the Magistrate courts in all civil matters. This lacuna is further sustained by the myriad of conflicting court decisions offering differing legal principles in relation to different courts’ jurisdiction in labour matters.

1. Introduction

Labour disputes are recognized as one of the most frequent matters handled by the courts of judicature in Uganda. This is premised on the fact that Uganda has a 3.7% population growth ate and 78% of its population is under the age of 30 years and make up the majority of the labour force of the state. Evidence shows that disputes relating to conditions of work, salary payments, unfair termination, employment benefits among other labour issues form a majority of the cases litigated by courts each year. This state of affairs prompted the establishment of the Industrial Court of Uganda which was mandated with the specific duty of resolving labour disputes.

The labour officer is empowered under Section 24 of the Labour Disputes (Arbitration and Settlement) Act, 2006 (hereinafter referred to as The Act) to apply mediation and conciliation methods in the settlement of employment disputes. However, they also have the power under Section 5 of the Act to refer any disputes to the industrial court which adjudicates and resolves all referred labour disputes. Therefore, pursuant to the Labour Disputes (Arbitration and Settlement) Act, the industrial court is established as court of first instance for all labour disputes. However, this legal position has over time been challenged by the statutorily guaranteed jurisdiction of the other courts of judicature namely the High Court and the Magistrates Courts.

2. Establishment, jurisdiction and mandate of the Industrial court of Uganda

Section 7 of the Act establishes the Industrial court whose functions are stated in Section 8 of the Act to include; arbitration of labour disputes referred to it and adjudication upon questions of law and fact arising from references to it. The industrial court is seized of a labour matter upon reference by the labour officer who is mandated under Section 5 of the Act to refer matters which after four weeks after receipt have not been resolved for example in Engineer Eric Mugyenzi v Uganda Electricity Generation Company, the labour dispute was referred to the industrial court upon request by claimant’s counsel who contended that the matter involved substantial questions of law or fact which could only be adequately determined by the industrial court.

The industrial court is made up of a chief judge, a judge, an independent member, a representative of the employee and a representative of the employer. Section 10(3) of the Act provides that the chief judge and the judge of the industrial court shall hold office for a term of five years however this provision was successfully challenged in the case of Asaph Ruhinda Ntegye & Another v Attorney General, where the constitutional court stated that the industrial court is a court of judicature and held that Section 10(3) of the Act was unconstitutional in light of Article 2, 21(1) and (2), 40(1)(b), 129(1)(b) and 144(1),(2) and (3) of the Constitution which provide for the supremacy of the constitution, equality and non-discrimination, equal payment for equal work without discrimination and the provision on tenure of office for judicial officers respectively. The court went ahead to declare that:

"The petitioners are judges of the courts of judicature in accordance with Article 129(1) and may enjoy the tenure of office of judicial officers at the level of High court judges as prescribed in Article 144 of the Constitution."

The industrial court is also made up of a registrar who is appointed by the Public Service Commission with administrative functions and under the supervision of the Chief Judge. This court’s proceedings are governed by the Labour Disputes (Arbitration and Settlement)(Industrial Court Procedure) Rules of 2012 which provide for; procedure of reference of a labour dispute under Rule 3, registration of a reference by the registrar upon its receipt in Rule 4, requirement of filing a memorandum in Rule 5, fixing of a hearing date by the registrar and hearing by the industrial court in Rule 7 and 9 respectively, awards of the court in Rule 20 and appeals of the court to lie in the Court of Appeal in Rule 23 among other provisions. 

The Honorable Judges of the Industrial Court

3. Unveiling the complexities in the jurisdiction of the Industrial court in light of other courts of judicature

The Parliament is mandated under Article 129(1)(d) of the Constitution to establish such subordinate courts which shall have judicial power. This was reiterated by Hon Justice Joseph Mulenga JSC (as he then was) in Attorney General v Joseph Tumushabe, as follows:

“There is no provision of the Constitution that restricts Parliament in the exercise of that discretion from vesting in a subordinate court jurisdiction over same matter, which is also within the jurisdiction of the High Court…In that regard therefore, Parliament may in its discretion place a subordinate court in the appellate hierarchy at the same level as the High Court…”

Therefore, the industrial court has through different court decisions like Asaph Ruhinda Ntegye & Another v Attorney General, and Attorney General v Joseph Tumushabe; been recognized as a court of judicature with its judges being entitled to equal rights and benefits under Article 144 of the Constitution. This legal position was reinforced in the case of Uganda Broadcasting Corporation v Kamukama, where the High court referred a labour dispute to the labour officer for appropriate resolution and the learned trial judge stated that;

“…by parliament enacting other subordinate legislation conferring jurisdiction to different forum to adjudicate over disputes does not in any way diminish the fact that the High Court has unlimited jurisdiction…Much as this court has unlimited jurisdiction if one looks at the intention of parliament in conferring jurisdiction on the Labour officer and the creation and operationalization of the Industrial Court with appellate jurisdiction it would be prudent if these two institutions are put to good use…Avoiding these institutions would be defeating the intentions of the legislature since the Industrial Court is now operational…”

Despite the legal clarity offered by the above judicial decisions, there remains a myriad of judicial decisions that offer an uncertain and contradicting legal position of the exact jurisdiction of the industrial court. This essentially undermines the different legal principles that exist to ensure consistency in judgements for example the principles of separation of powers between the judiciary and the legislature, stare decisis, judicial precedent and the prohibition of per incuriam decisions.

The contradicting judgements create uncertainty as to whether the establishment of the labour office and its powers of referring labour disputes to the industrial court whose decisions are appealed to the court of appeal eliminates the jurisdiction of other courts of judicature especially the magistrate courts and the high court as courts of first instance in labour disputes. The jurisdiction of magistrate courts and the high court in labour disputes was handled in different cases as shown below;

a) Magistrate courts

The legal question of whether the magistrate courts have jurisdiction to handle labour disputes was settled in the case of Concern Worldwide v Mukasa Kugonza, where the applicant sought the revision of the default judgement entered by the chief magistrate court on a case involving a labour dispute on grounds that the said court lacked jurisdiction. Hon. Lady Justice Wolayo on revision set aside the default judgement and stated that the chief magistrate court acted without jurisdiction as Section 93 of the Employment Act confers jurisdiction in the first instance on the district labour officer. The learned justice went ahead to state that despite Section 207 and 208 of the Magistrate’s Courts Act conferring jurisdiction in civil matters on magistrate courts, this jurisdiction can only be exercised to the extent that the jurisdiction is not expressly or impliedly barred.  

This decision offered clarity on the fact that  the establishment of the industrial court under Article 129 of the Constitution and Section 7 of the Act amounted to the express ousting of the powers of the magistrate courts in regards to labour matters. This position was reinforced in the case of Umeme Limited v Daniel Sonko.

However, the above decisions were overturned by the subsequent case of Ozuu Brothers Enterprises v Ayikoru Milka, where the issue before court was whether the magistrate court have jurisdiction to handle employment disputes. Hon Justice Stephen Mubiru relied on the cases of; David Kayondo v Cooperative Bank Limited, Kameka Growers Cooperative Society Limited and 7 others v North Bukedi Cooperative Union, Commissioner General Uganda Revenue Authority v Meera Investments Limited; where the courts recognized the fact that provisions ousting the ordinary  jurisdiction of a court must be construed strictly and that an Act of Parliament except one which amends the Constitution cannot oust the inherent statutorily guaranteed jurisdiction of any court over civil matters. He thus held that the magistrate grade one court had competent jurisdiction to try labour dispute matters by virtue of Section 208 of the Magistrate Court Act.

Workers at a Ugandan Textile Factory

b) High court

The High Court in Article 139(1) of the Constitution is vested with unlimited original jurisdiction in all matters. This position of law has been reiterated in numerous cases for example; in Former Employees of G4S Security Services v G4S Security Services ltd, the Supreme Court held that the High court by virtue of Article 139(1) of the Constitution retains its unlimited original jurisdiction to hear employment matters as a court of first instance irrespective of Sections 93 and 94 of the Employment Act. In Commissioner General Uganda Revenue Authority v Meera Investments, the Supreme court also held that Article 139(1) of the Constitution confers unlimited original jurisdiction upon the High court in all matters and this jurisdiction could only be ousted by a Constitutional Amendment. The court went ahead to state that an Act of Parliament cannot repeal, alter or reverse a provision of the Constitution unless it is an Act to amend the Constitution.

It is however important to note that by implication, Section 22 of the Act which provides that ‘an appeal shall lie from a decision of the Industrial Court to the Court of Appeal…’ ousts the jurisdiction of the High court to handle labour disputes. This is because the two courts have concurrent jurisdiction and the industrial court is by the Labour Disputes (Arbitration and Settlement) Act vested primarily with employment disputes jurisdiction. However, this is in fact not the position adopted by courts as seen in the case of Hilda Musinguzi v Stanbic Bank limited, where the court held that the aggrieved party in a labour dispute can institute a claim in the High court by virtue of Article 139(1) of the Constitution irrespective of the provisions of Section 93(1) of the Employment Act. Hon Lady Justice Elizabeth Musoke relied on the case of Rabo Enterprises v Commissioner General of Uganda Revenue Authority, where court stated that;

“the conferment of the appellate jurisdiction on the High court by Section 27 of the Tax Appeal Tribunal Act over the decisions of the Tax Appeal Tribunal has no effect on the original jurisdiction of the High Court conferred by Article 139(1) of the Constitution. That meant that a party who is aggrieved by the decision of the Tax Authority on Tax matters may choose either to apply to the Tax Appeal Tribunal for Review, or file a suit in the High Court to redress the dispute. The choice is his/her…”

4. Paving a way forward to ensure effective adjudication of labour disputes

The Blacks Law Dictionary defines a ‘per incuriam decision’ as one that is wrongly decided usually because the judge or judges were ill-informed about the applicable law. Therefore, the legal uncertainty on which specific court of judicature is a court of first instance in labour  disputes could be resolved by the application of the common principles of judicial precedent and stare decisis as well as doctrine of per incuriam. Judicial officers should be cautioned to apply the laws of Uganda in harmony with each other while ensuring that no single legislation is used to override the provisions of another. There is also need for the Supreme court to offer clarity on what is the valid legal position on the jurisdictional question of all the magistrates court, industrial court and high court in relation to labour disputes.

5. Conclusion

In conclusion, the labour disputes backlog in the judiciary could be effectively handled if the ambiguity and lack of clarity surrounding the appropriate court with jurisdiction is settled. In specific, parameters should be set delimiting the scope of each of the courts of judicature to ensure harmonious adjudication of labour disputes.

*Nakalema Stella Maris is a legal author. She is an alumna of Makerere University School of Law. Contact at nakalemastellamarris@gmail.com 

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