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The Industrial Division of the High Court has awarded Shs 36.3million to Ssewanyana Fred a former employee of Wakiso district after he was wrongly dismissed by the District Service Commission.Justice Anthony Wabwire Musana and a panel of three who included Amos Lapenga, Emmanuel Bigirimana and Dr Oling Dawn Kerjew held that before a contract of an employee accused of misbehaviour is terminated, he must first be given an opportunity to defend himself.“If an allegation likely to have an adverse effect on an employee is made against them, the employee has the right to be heard,” the court ruled. “The procedural guardrails are twinned with and reinforced by a specific statutory requirement under Section 67(2)EA that the reason for termination must be one that the employer genuinely believed to exist at the time of the dismissal, which the courts have judicially explained to mean that the reason must be proven at a disciplinary hearing, to a reasonable degree.”Ssewanyana was on September 1st 1990, employed by Mpigi District as a clerical officer and on March 16th, 1995, was appointed Records Assistant Grade II, and later in 2002 transferred to Wakiso district after its creation from Mpigi district as records officer.However, in 2007, he was compulsorily retired by the Wakiso District Service Commission to facilitate improvement and effect economy in service delivery. He appealed to the Public Service Commission which also confirmed the District service commission decision.Aggrieved by his compulsory retirement, he filed a claim in the industrial court in 2017 arguing that despite his academic credentials having been verified and found satisfactory during a 2005-2006 restructuring exercise, the District Service Commission wrongfully retired him without any disciplinary charges or a fair hearing, thereby violating Article 173 of the Constitution and the rules of natural justice.He also alleged that his retirement was based on anonymous complaints and advice from the Public Service Commission which he was never permitted to challenge.In its reply, the District Service Commission contended that Ssewanyana was compulsorily retired from public service following a finding by the Public Service Commission that his appointment was irregular. It was alleged that Ssewanyana presented a tampered-with O’Level certificate and had failed the English language examinations.In their ruling, the court found that Ssewanayana’s compulsory retirement was on account of his irregular appointment and forged or tampered-with ‘O’ Level certificate and not compulsory retirement to facilitate improvement and effect economy in service delivery as was stated in his termination letter. The court found that because his termination was based on irregularities in his appointment, he ought to have been heard.“The evidence does not show that he was invited to respond in any way to the allegations that he had tampered with his ‘O’ Level Certificate, failed the English Language, uttered a false document or indeed arranged his affairs in a manner that made his appointment to public service irregular,” the court ruled. “In other words, he was not heard. Judged against the standards of a fair hearing under employment law, we would find that the claimant’s compulsory retirement was unlawful and unfair.”The court therefore ordered that Wakiso District Service Commission pays Ssewanyana Shs 27.4million in severance pay, Shs 1.7million as six month’s gross salary in lieu of notice, Shs 279,000 in transport costs and Shs 6.85million as general damages.The court also awarded a 6% interest from the date of the dismissal until full payment. The court also ordered that the District Service Commission pays the costs for the claim.About Post Author
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