The Industrial Court, the high court division that handles employment disagreements has dismissed a claim filed by an employee of Cavendish University who was challenging his dismissal as a lecturer for holding another fulltime job at Makerere University.
Judge Anthony Wabwire Musana with a panel that included: Can. Amos Lapenga, Emmanuel Bigirimana and Dr Oling Dawn Kerjew, ruled that, serving two institutions concurrently cerates humanly impossible conflict of time and devotion.
“Accordingly, it is our judgment that the Claimant’s dismissal was substantively fair. By maintaining concurrent full-time employment at Makerere University while bound by an express exclusivity clause, the Claimant fundamentally breached his common-law duties of fidelity and good faith,” the panel ruled. “An employee cannot act in good faith while drawing two fulltime salaries, as serving two institutions concurrently creates an inherent, humanly impossible conflict of time and devotion. Neither alleged employer knowledge, customary academic practice, nor reliance on UNESCO recommendations negates this breach, as the non-competition clause strictly bound the Claimant. Having objectively considered the facts, we have no hesitation in finding that it is impossible to say that the Respondent was not substantively justified in dismissing the Claimant.”
The ruling followed a claim filed by Dr Fredrick Kiwuwa Lugya against Cavendish University Uganda challenging his dismissal. In his 2018 claim to the Industrial court, Lugya claimed that the termination of his employment contract was wrongful, unjustified, and unlawful due to the denial of a fair hearing.
He further sought a declaration that Clause 12 of his employment contract, which prohibited other fulltime employment, was overly broad and constituted an unreasonable restraint of labour.
He demanded that he be compensated with over Shs 100million in missed earnings. Cavendish University denied the claim alleging that it was Lugya who had breached his terms of employment.
In its defence, Cavendish University said that it had discovered that Lugya was a fulltime employee of Makerere University Kampala, a fact he had allegedly concealed by submitting a 2014 curriculum vitae indicating he had ceased working there in 2012. It also said that it afforded Lugya a fair hearing during which he admitted to the dual fulltime employment.
In the ruling, the court noted that Lugya entered a contract of service with Cavendish University by which he agreed to devote all his time to it. He thus undertook not to enter any other employment for a period of two years with effect from 21st November 2016 in order to protect the trust and confidence between him and the university.
“The claimant knowingly bound himself to a clause that prohibited any other full-time employment,” the ruling further affirmed. “He signed this contract…Therefore, while the Claimant felt he was not putting the Respondent at a disadvantage, he was…applying a very subjective view of his employment. It is not up to the employee to decide whether the employer is disadvantaged by the employee’s full-time employment elsewhere. In our estimation, that remains within the exercise of managerial prerogative. It is impossible to conclude that he would devote equal time to both jobs. He contracted to devote himself full-time to the Respondent, and, as the evidence shows, he did not. We are therefore unpersuaded that a scholar of Dr. Kiwuwa Luggya’s standing did not contemplate that having appended his hand to the non-compete provision of clause 12 of his employment contract with the Respondent, he would not fundamentally breach his employment contract, if he maintained dual employment.”
The court also rejected Lugya’s complaint of discrimination on the ground that other academic employees were also employed full-time elsewhere but were not dismissed. The court said, the claim of discrimination can only be sustained if it is against those rights protected in the constitution.
“We think that this argument does not gain much purchase in view of a very clear exposition of the law of discrimination…we established that proving unlawful discrimination under Article 21 of the Constitution and Section 6(3)EA(now 5(3)) requires demonstrating unequal treatment directly motivated by a protected attribute, such as race, sex, or origin.
We observed that discrimination is proven where the employee can show that their protected characteristics were a factor in the adverse treatment. Consequently, dismissal in the present case cannot be aggregated into a finding of discrimination without specific proof of a protected distinction. The Claimant did not make a case for discrimination on the grounds of race, colour, sex, religion, political opinion, national extraction or social origin, HIV status or disability which had the effect of impairing his treatment. We are unsatisfied that a discrimination claim was established and it hereby fails.” With this finding, the court entirely dismissed the claim and ordered each party to pay its own costs-URN. Give us feedback on this story through our email: kamwokyatimes@gmail.com
