Deus court ruling

Makerere University Staff Tribunal Reinstates Dr Deus Kamunyu, Orders Board to Pay His Money Deducted On Salary for Six Months

Makerere university staff tribunal court has reinstated Dr Deus Kamunyu Muhwezi who was suspended and charged by the university appointments board for six months and ordered to be receiving half pay of his salary.

His suspension came after the university appointments board found him guilty of five offenses which included taking part in an illegal strike contrary to section 5.7(18) , use of abusive or insulting language or behavior or assault contrary to section5.7(7) of the Makerere University Human Resource Manual as amended,  Acts or omissions that are prejudicial to the proper performance of duties or the university’s image or status whether within or outside the university contrary to section 5.7(8) of the Makerere University Human ,  Non-adherence to any other university policies contrary to section 5.7(22) of the Makerere University Resource Manual, and lastly with  slander contrary to section 5.7(10) of the Makerere University Human Resource Manual.

Before the ruling that reinstated Dr Deus, the university tribunal heard both sides of the appellant and the respondent where Prosecution prayed that if this Board finds the respondent guilty of the charges, it should dismiss him from University service so that this similar conduct is not repeated by other University staff in future.

However, the board in its wisdom  decided to use it’s discretion as provided under the Human Resource Manual of Makerere University instead of a dismissal to sentence the respondent to 6 months with immediate effect. During suspension, the respondent shall receive half salary and any other related emoluments and should not access his office as lecturer at Makerere University.

However the university tribunal court found out that the relevant provisions on suspension of an employee are section 63 of the Employment Act, 2006 and section 5.g (bXii). section 63(1) provides: ‘whenever an employee is conducting an inquiry while he or she has reason to believe may reveal a cause for dismissal/ of or  the employer may suspend that employee with half pay” Section 63(2) of the ‘Act provides: ‘Any suspension under subsection (1) shall not exceed four weeks or the duration of the inquiry, whichever is shortest  Section 5’9(b) (ii) of the Human Resource Manual states: ‘The power to suspend services of an employee shall be vested in the Vice Chancellor or the appointing authority.

An employee may be suspended from duty on half pay to enable commencement of investigations into alteration

Thus, whereas section 63(2) of the Employment Act provides that suspension should not exceed four months or duration of an inquiry, whichever is shorter, the appellant was suspended for six months.

The sections also indicate that suspension is instituted to allow an inquiry/investigation, but in this case the appellant, there was no investigation/inquiry conducted.

The Board also hinted on the question of lack of investigation/inquiry and stated at p. 9 of the ruling; Before a decision is taken to commence disciplinary proceedings against an employee there should be an investigation carried out and a report concluded.

The Appointments Board should have ensured that an investigation was carried out and the rules of natural justice observed during the process but facts available show that the term of office of the previous Appointments Board had expired at the time the incidents complained of herein occurred and the committee that had been set up was dissolved by council and its actions hatted.

The tribunal states that given the circumstances as mentioned above,

“We have decided to consider the evidence on record and determine the matter on its merits since all sides were given a chance to testify and defend their positions emphasis added. Page 8 of 9, it is clear from the above provisions that the purpose of suspension is to allow an inquiry/investigation against the accused employee before disciplinary proceedings are commenced against him.”

“ln this case, no investigation/inquiry was carried out by the respondent. The suspension of six months with half pay was imposed by the Board on the appellant after the disciplinary proceedings had been concluded. The punishment by the Board (six months with half pay) contravenes section 3 of the Employment Act and section 5.g (bxii) of the Human Resource Manual and is thus illegal.” it pointed out.

The tribunal therefore ruled that the decision of the appointments board of sentencing the appellant to six months with half pay is hereby set aside, that the respondents should immediately pay to the appellant the money equivalent to six months that was deducted from his salary and that each party should bear its own costs.

FULL COURT RULING

THE REPUBLIC OF UGANDA

MAKERERE UNIVERSITY STAFF TRIBUNAL

APPEAL NO. 18 OF 2019 (ARISING OUT OF DISCIPLINARY ACTION NO. 53 OF

2019)

  1. DEUS KAMUNYU ….,….APPELLANT

VERSUS

MAKERERE UNIVERSITY… RESPONDENT

 

RULING

Background

The appellant, a lecturer in the Department of Forestry, Biodiversity and Tourism in the

College of Agriculture and Environmental Sciences and then Chairperson Makerere

University Staff Association (MUASA) was charged in the Makerere University

Appointments Board (hereinafter “the Board”) with the following offences:

  1. i) Taking part in an illegal strike contrary to section 5.7(18) of the Makerere

Human Resource Manual;

  1. ii) Use of abusive or insulting language or behaviour or assault contrary to section

5.7(7) of the Makerere University Human Resource Manual as amended;

iii) Acts or omissions that are prejudicial to the proper performance of duties or the

university’s image or status whether within or outside the university contrary to

section 5.7(8) of the Makerere University Human Resource Manual;

  1. iv) Non-adherence to any other university policies contrary to section 5.7(22) of

The Makerere University Resource Manual; and

  1. v) Slander contrary to section 5.7(10) of the Makerere University Human

Resource Manual as amended.

After the hearing, the Board acquitted the appellant on four charges (counts (l)-(lll) and

(V)) but convicted him of the offence in count lV, namely, ‘Non-adherence to any other

university policies cbntrary to section 5.7(22) of the Makerere University Resource

Manual’, and sentenced him to. six (6) months suspension with half pay. Below is the

statement and particulars of the offence in count lV.

STATEMENT OF THE OFFENCE

Non-adherence to any other university policies contrary to section 5.7(22) of the Makerere

University Human Resource Manual 2009 as amended.

PARTICULARS OF OFFENCE

You, Deus Kamunyu while employed as a Lecturer in the department of Forestry,

Biodiversity and Tourism in the College of Agricultural and Environmental Sciences

engaged in a scuffle that caused a standoff with security officers at the Vice Chancellor’s

Office and entry to the council room on 2Ah December 2018 the day of the inaugural

Council room disrupted university activities. You have since 2017 not been adhering to

University laws and policies and failed, neglected or refused to take heed despite several

Warnings.

The appellant appealed to Makerere University Staff Tribunal (“the Tribunal”) on the

following grounds:

  1. The Appointments Board erred both in law and fact in relying upon prosecution

evidence that supported alleged offense(s) for which the appellant was not

Charged with hence reaching a wrong conclusion;

  1. The Appointments Board erred in law and fact by retying upon insufficient evidence

to convict the appellant for the alleged disciplinary offence;

  1. The Appointments Board erred in law and fact in convicting the appellant on

charges of non-adherence to any other university policies, a charge whose nature

was ambiguous and unsustainable in law; and

  1. The Appointments Board erred in law and fact in convicting the appellant for an

alleged offence without according him a fair hearing.

Submissions

Counsel for the appellant, Mr. Portase Byarugaba argued the four grounds together.

Counsel submitted that the Board did not accord the appellant a fair hearing, which

contravenes article 28, 42 and 44 of the Constitution. Counsel argued that for a fair

hearing to occur, a party must be given adequate notice containing a charge to enable

him or her study the charge and prepare a defence, and the notice must contain an outline

of the accusations. That the offence must be stated in the statement of the offence and

the outline of the accusations, that is, in the particulars of the offence. In respect of count

(iv) with which the appellant was convicted, counsel submitted that no university policies

that were not adhered to be mentioned. That in the particulars of the offence, the

particulars are more or Iess similar to the particulars of the offence in count lll in which

the appellant was acquitted.

Counsel submitted that whereas the outline of a charge should be elaborate, clear and

unambiguous detailing the offence and how it was committed, in this case, the laws and

policies of the university, which the appellant is alleged not to have adhered to, were

never disclosed so that the appellant could adequately respond to the charge. Counsel

further submitted that whereas in the Board’s ruling it is stated that the appellant violated

section 8.2 of the Makerere University Communication Policy, whose provisions are

‘particular, distinct, unambiguous and candid’, he was neither charged with the same nor

was the breach of the policy ever put to him. That the ruling is to the effect that the

appellant was communicating to the media against the Communication Policy of the

university whereas not. Counsel concluded that the appellant was wrongly. And illegally

convicted and sentenced and prayed that the decision be set aside. He also prayed for

costs of the appeal in the Tribunal and in the Board below.

 

In reply, counsel for the respondent, Ms. Esther Kabinga argued grounds 1, 2 and 3

together. Counsel submitted that the particulars of the offence under count IV included

an allegation that the appellant has since 2017 failed and or neglected and or refused to

take heed of several warnings. That the evidence before the Board was that the appellant

violated the University Communications Policy. That according to the evidence on record,

the appellant had continuously engaged in misconduct of making damaging verbal

allegations and at times publishing the same. That when the appellant was warned by

the Vice Chancellor on several occasions, he ignored the warnings and guidance and as

such was in breach of the Communications Policy of the university, which the appellant

was clearly aware of, including its contents. That this gave the appellant a fair opportunity

to ‘meet the case against him’.

Counsel for the respondent further submitted that the conduct of the appellant breached

the clear code of conduct of the university, his employer, as provided in the Human

Resource Manual by which he was bound as an employee. That the appellant failed to

act reasonably and responsibly. That he failed to comply with laws of Uganda and

university’s policies, rules and standing instructions and procedures and also failed to

exercise courtesy, civility and self-control towards his colleagues; That the appellant

neglected and willfully refused and/or failed to comply with guidance and the directives

issued to him as a member of staff or employee by the Vice Chancellor, the Chief

Executive Officer of the university, in the conduct of his business in matters relating to the

university.

Counsel further submitted that the appellant always sought to hide behind his position as

Chairperson of MUASA as he continued to undermine university policies. That the

appellant owed a duty to his employer as he is a member of staff association by virtue of

his employment without which he could not have been elected by other members of staff

as the Chairperson of MUASA. That the appellant’s conduct violated section 8.2 of the

Makerere University Communications Policy, which provides that members of the

university community who wish to issue out information are encouraged to cross check

the accuracy of the information before communicating within and outside the university.

That during the hearing, the appellant acknowledged that he was well aware of the policy

and its contents. That-throughout the hearing of the case and in the submissions, this

evidence remained unrebutted by the appellant. According to counsel, there was no

miscarriage of justice againstthe appellant as he chose to ignore and made no effort to

rebut this evidence that clearly implicated him in wrongdoing against his employer. That

therefore, the Board was right to find that the appellant’s conduct exhibited a high sense

of disregard of university policies. That in any case, the appellant admitted that he

authored the communication in issue.

Counsel for the respondent further submitted that the Board rightly found that the

evidence adduced by the prosecution against the appellant showed that he had been

warned by the Vice Chancellor in writing to desist from making unsubstantiated

allegations against the university but he refused and neglected to comply with the

 

directives and his entire conduct was in bad faith. That when the appellant was charged

before the Board, he was served with a charge sheet and summons and he filed a written

defense to the charges. That he appeared before an impartial panel of the Board; the

prosecution fully disclosed all the evidence it intended to use to prove the prosecution

case against the appellant before the Board; the appellant fully participated in his hearing;

had legal representation and cross examined all the prosecution witnesses on their

evidence; and that the appellant gave his defense through witnesses of his own choice.

In light of this, counsel submitted that the appellant was given a fair hearing and he never

suffered any miscarriage of justice as he was fully aware of the charges brought against him. Thus, the Board was fair and just in convicting the appellant of the offence in count

4 and sentencing him accordingly. Counsel prayed that the Tribunal finds no merit in the

appeal and dismiss it accordingly.

ln rejoinder, counsel for the appellant submitted that sections 8 and 5.1 which are referred

to in the ruling are not any other policies as shown in count lV of the charge sheet. That

had the appellant breached the provisions of section 8(2) and/or section 5(1) of the

Human Resource Manual, the appellant should have been charged under those particular

sections clearly indicating what he was accused of and bringing out the particulars of the

alleged offence for the accused to read, understand, respond to and prepare a defense.

That the appellant was not charged with breaching any of these provisions but he was

charged with non-adherence to ‘any other university policies’, which policies he was not

made to understand. Counsel further submitted in rejoinder that it is not legally and/or

administratively permissible that the appellant is charged with a blanket offence and then

get out a particular offence(s) Iater allegedly disclosed by evidence and then go ahead to convict the appellant. That whatever was done contravened the principles justice, of natural especially the right to a fair hearing, which is not only applicable in courts of law

but also administrative bodies or other bodies where any person is accused of wrong

doing.

Counsel for the appellant further submitted in rejoinder that there is nothing clear on the

record to implicate the appellant for what he was convicted of. That there is no evidence

that the appellant communicated out any information through newspapers as stated in the Board’s ruling and there is no evidence that he had been advised by the Vice

Chancellor from continuing with such. That the prosecution did not produce any witness from the media to testify to that effect. That there is also no media report on record

Mentioning the appellant as the person who gave them the information.

FINDINGS OF THE TRIBUNAL

The appellant was charged in the Appointments Board with five counts, which have been outlined above. ln its ruling, the Board acquitted the appellant of four counts (1, ll, lll and V) of the charge sheet. The appellant was convicted of count lV, namely, non-adherence to any other University policies contrary to section s.T(22) of the Human Resource Manuals amended. The matter before the Tribunal raises two issues:

1) Whether the appellant was denied the right to a fair hearing; and

2) Whether the suspension of the applicant for six months with half pay was lawful.

lssue One: Whether the appellant was denied the right to a fair hearing

The Board found the appellant guilty on count V basically for two reasons. ln the first

instance, that the appellant had neglected and/or failed to adhere to the general code of

conduct under section 5.1 of the Human Resource Manual. The relevant section states:

‘Code of behavior shall refer to the employee’s conduct, relationship with others and

professional behavior during one’s employment. An employee shall be guided (among

others) by the following code of behavior breach of which shall constitute sufficient

grounds for disciplinary action against such employee’ (p. 15 of the ruling). Some of the

elements of the Code, which were relied upon by the Board are: a) an employee shall act

at times in a reasonable and responsible manner; b) An employee shall always comply

with the laws of Uganda as well as the university’s prescribed policies, rules, standing

instructions and procedures; and c) An employee shall at all times be rated and

recognized primarily on the basis of integrity (p.15 of the ruling). Secondly, that in all his

publications and engagements with the media and emails on staff email lists, the

appellant violated section 8(2) of the Makerere University Communications Policy, which

states: ‘Members of the University Community who wish for issue out information are

encouraged to cross check the accuracy of the information before communicating within

and outside the university'{p.16 of the ruling). However, none of these policies, that is,

the Code of Behavior and the Communications Policy, were specifically referred to in

the charge sheet.

Section 5.7 of the Makerere University Human Resource Manual is on ‘misconduct’ and

states: ‘Offences such as the following when committed shall constitute misconduct which

attracts disciplinary action’. Section 5.7(22) provides one of the offences that constitute

misconduct: ‘Non-adherence to any other university policies’. Section 8 of the Manual

states: ‘Any of the above offences [outlined in section 5.7] may be construed as gross

misconduct by the appointing authority depending on circumstances and gravity of the

offence’.

ln the view of the Tribunal, section 5.7(22) of the Manual is a progressive provision in the

sense that it caters for matters covering other university policies. A Human Resource

Manual cannot be expected to outline all policies of the university given that they may be

made and or reviewed/amended from time to time. lt thus suffices for the Manual to

simply refer to ‘other policies’. Indeed, these policies may include the Code of

behavior/Conduct or the Communications Policy cited by both the prosecution and the

Board. However, where an employee is charged for contravening a particular policy, that

policy and the specific provision alleged to have been breached, should, as a matter of

natural justice, be explicitly mentioned in the charge sheet so that an employee is able to

adequately prepare his or her defense. Where a charge is vague and unclear, it may be

held to contravene the right to a fair hearing.

 

The right to a fair hearing is a fundamental principle of natural justice. The right is

expressed in the Latin maxim audialteram partem,which loosely translated, means ‘listen

to the other side’ or let the other side be heard as well’. Article 28(1) of the Constitution

of the Republic of Uganda 1995 (as amended) clearly declares this right and states: ‘ln

the determination of civil rights and obligations or any criminal charge, a person shall be

entitled to a fair, speedy and public hearing before an independent and impartial court

Or tribunal established by law’. This right to a fair hearing is non-derivable under article

44 of the Constitution. The right to a fair hearing in respect of administrative tribunals is

Reiterated in article 42of the Constitution, which states: ‘any person appearing before an

administrative official or body has a right to be treated justly and fairly and shall have

a right to apply to a court of law in respect of any administrative decision take against him

or he/. The right to a fair hearing has been underlined by the courts in a number of cases

(See for example, Uganda Law Society and another v Attorney General, Constitutional

Petition No. 2 of 20A2; Caroline Turyatemba and Others v Attorney General,

Constitutional [Petition No. 15 of 2006; Ananias Tumukunde v Attorney General,

Constitutional Petition No. 4 of 2009).

Procedural fairness requires that the charge sheet is formulated in clear, precise and

simple terms. Charges against an employee should not be vague. The standard of clarity

of a disciplinary charge sheet is not as high as one in a criminal trial. However, the

charges must contain sufficient factual information to allow the employee to prepare for

the hearing and respond to the charges. ln the South African case of Numsa abo Masina

v Cobra (2009) 2 BALR 140, the arbitrator observed that although disciplinary hearings

are not required to conform to the procedures of criminal trials, accused employees are

at least entitled to be informed of the charges against them. Due to the insufficiency of

the information concerning the charges that had been given to the accused employee, it

was ruled that the employee’s dismissal was procedurally unfair and ordered the

employer to pay compensation to the employee. That providing the employee with

charges that are general or vague is unfair because this prevents the employee from

knowing against what specific charges, he or she needs to prepare a defense.

ln Oliver v University van Sfe//enbosch (Case 2181104), the Labor Court held that an

employee is entitled to clear charges and where the charges are vague, the decision will

be set aside. ln Ridge v Baldwin [1964] AC 40, the House of Lords held that before a

person is condemned, he should have an opportunity to defend himself and in order to

do so, he should be made fully aware of the charges or allegations which he has to meet

in the course of the hearing. ln Onyango Oloo v Attorney General (1986-1g8gl EA 456

the court held that any notice must contain sufficient information to enable the person

concerned know the substance of any charge or allegation against him. On the principles

of natural justice, the court stated:

lssue Two: Whether the suspension of the applicant for six months with half pay

was lawful.

Having found the appellant guilty of count lV, the Board sentenced him to six months’

suspension with half pay. Before sentencing the appellant, the Board stated (p. 19 of the

ruling):

Section S.g of the Human Resource Manual of Makerere university provides that any of

the aforementioned offences the respondent is accused of may be construed as gross

misconduct depending on the circumstances and the gravity of the offence which

Warrants a person found guilty liable for dismissal from the university service. Prosecution

prayed that if this Board finds the respondent guilty of the charges [it] should dismiss him

from University service so that this similar conduct is not repeated by other University

staff in future. However, the board in its wisdom has decided to use its discretion as

provided under section S.B of the Human Resource Manual of Makerere University

instead of a dismissal/ of sentence [the] respondent to 6 months with immediate effect.

During suspension the respondent shall receive half salary and any other related

emoluments and should not access his office as lecturer at Makerere University.

The relevant provisions on suspension of an employee are section 63 of the Employment

Act, 2006 and section s.g(bXii). section 63(1) provides: ‘whenever an employee is

conducting an inquiry while he or she has reason to believe may reveal a cause for

dismissal/ of an, the employer may suspend that employee with half pay”

Section 63(2) of that provides: ‘Any suspension under subsection (1) shall not exceed

four weeks or the duration of the inquiry, whichever is shorter.

 

Section 5’9(b) (ii) of the Human Resource Manual states: ‘The power to suspend services of an employee shall

be vested in the Vice Chancellor or the appointing authority. An employee may be

suspended from duty on half pay to enable commencement of investigations into

allegations. Thus, whereas section 63(2) of the Employment Act provides that

suspension should not exceed four months or duration of an inquiry, whichever is shorter,

the appellant was suspended for six months. The sections also indicate that suspension

is instituted to allow an inquiry/investigation, but in case of the appellant, there was no

investigation/inquiry conducted. The Board also hinted on the question of lack of

investigation/inquiry and stated at p. 9 of the ruling:

Before a decision is taken to commence disciplinary proceedings against an

employee there should be an investigation carried out and a report concluded’ the

Appointments Board should have ensured that an investigation was carried out

and the rules of natural justice observed during the process but facts available show

that the term of office of [the] previous Appointments Board had expired at the time the

incidents complained of herein occurred and the committee that had been set up was

dissolved by council and its actions hatted.

 

Given the circumstances as mentioned above,

we have decided to consider the evidence on record and determine the matter on its

merits since at sides were given a chance to testify and defend their positions [emphasis

added.

It is clear from the above provisions that the purpose of suspension is to allow an

Inquiry/investigation against the accused employee before disciplinary proceedings are

commenced against him or her. ln this case, no investigation/inquiry was carried out by

the respondent.

The suspension of six months with half pay was imposed by the Board

on the appellant after the disciplinary proceedings had been concluded. The punishment

by the Board (six months with half pay) contravenes section 3 of the Employment Act and

section 5.g(bxii) of the Human Resource Manual and is thus illegal.

The tribunal hereby makes the following orders:

  1. a) The decision of the Appointments Board of sentencing the appellant to six months

with half pay is hereby set aside;

  1. b) The respondents should immediately pay to the appellant the money equivalent to

six months that was deducted from his salary; and

  1. c) Each party should bear its own costs.

 

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