Termination of Employment by the Employer without Giving Reasons in Uganda and Art 4 of the ILO Termination of Employment Convention
Termination of Employment by the Employer without Giving Reasons in Uganda and Art 4 of the ILO Termination of Employment Convention
Author Jamil Ddamulira Mujuzi
ISSN: 2413-9874
Affiliations: Professor, University of the Western Cape
Source: Industrial Law Journal, Volume 45 Issue 3, 2024, p. 1453 – 1474
https://doi.org/10.47348/ILJ/v45/i3a4
Abstract
Uganda ratified the International Labour Organisation (ILO) Termination of Employment Convention 1982 without reservations. Article 4 of the convention provides that ‘[t]he employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service’. Uganda has not yet domesticated the whole convention and art 4 in particular. Section 65(1)(a) of the Employment Act 2006 provides that termination of a contract of employment or service is deemed to take place ‘where the contract or service is ended by the employer with notice’. It is silent on whether the employer has to give reasons for the termination. There are many cases in which the Industrial Court has relied on art 4 of the convention to hold that s 65(1)(a) of the Act requires an employer to give reasons for the termination of employment. However, these decisions have been set aside by the Court of Appeal on the grounds that s 65(1)(a) does not require an employer to give reasons and that art 4 has not been domesticated. In this article, the author relies on the drafting history of the Employment Act to argue that it was an oversight on the part of Parliament to omit the requirement for an employer to give reasons for terminating employment under s 65(1)(a). It is also argued, inter alia, that s 65(1)(a), as interpreted by the Court of Appeal, is unconstitutional and contrary to Uganda’s international treaty obligations. The conclusion of this article is that s 65(1)(a) should be interpreted as requiring an employer to give reasons for termination of employment. Reliance may be placed on legislation from countries such as Ghana, Malawi, the Seychelles and Zambia to suggest ways in which Uganda could expressly domesticate art 4 of the convention. The author also argues that the Supreme Court’s decision in DFCU Bank Ltd v Kamuli (2020) to the effect that the Court of Appeal is the apex court in labour matters is contrary to the drafting history of the Constitution.
