Hamid Mohammed, the Chairman of Aya Group is accused of sexually harassing his employee, Ms. Jamira Opondo in the latest labour dispute in Uganda.
The story reported is that the investor sexually harassed Ms. Jamira Opondo, on the company premises. The woman reported the matter to the Police against whom she alleges did not make a follow up of the case. She then reported to the Labour Office where State Minister for Labour, Herbert Kabafunzaki promised to follow up on the case. It is reported that instead of helping the woman find justice for her ordeal, the minister apparently solicited for a deafening bribe to ‘make the case disappear’.
Fast forward, the minister is battling corruption charges after being nabbed by state operatives acting on the president’s command. The investor may jump prosecution should the flame light on only corruption and not the sexual harassment matter.
The highly publicized arrest overshadows the initial report which was of sexual harassment of an employee by her employer and how disputes arising from such relationship can be handled.
This article touches on ways of settling employment/labour disputes, despite their nature.
On labour disputes and settlement
Labour disputes, especially for Uganda’s sake, are handled by the Ministry of Labour, its Labour Officers and the Industrial Court.
According to section 3 of the Labour Disputes (Arbitration and Settlement) Act, 2006, Labour disputes must be referred to a Labour Officer.
The law dictates that any dispute should be lodged to the Labour Officer’s office, in writing, and can only be reported to the Commissioner for Labour ‘if it is, or is likely to become a national disaster’.
Despite the two (2) weeks’ provision to handle a report/case, Labour Officers practically take longer. The Labour Officer is expected to meet the parties, use conciliatory means to meet the parties, appoint a conciliator if the officer is unavailable, negotiate a settlement or reject the report and inform the parties of his/her reasons.
Section 5 of the Act provides that the Labour Officer may after four (4) weeks of receipt of the dispute refer it to the Industrial Court if it is not resolved. This provision limits the aggrieved party from appealing to the Industrial Court or going to it directly unless otherwise provided by the law.
Consequently, it calls for vigilance of the aggrieved party to monitor his/her case and ensure the Labour Officer has referred it to the court or else the process is hijacked.
The law assumes that the parties must agree to the Labour Officer’s decision. If the Labour Officer extends the period for conciliation, the extension is only for two (2) weeks. This means that the parties have consented to the extension before it is decreed.
If after eight (8) weeks from the date the report was made the Labour Officer has not referred the unsettled dispute to the Industrial Court, any or both parties may do so. In these circumstances, the aggrieved party must be vigilant and report.
The issue about ADR and Labour/Employment contracts
Contracts normally contain dispute resolution methods. If a dispute arises between contractual parties whose terms of reference involve conciliation or arbitration, the Labour Officer cannot refer the matter to the Industrial Court. Instead, the Labour Officer settles on the arrangement in the contract and ensures the parties settle vide the clause they agreed to.
In some way, a dispute resolution clause in the contract may be a hindrance. However, the spirit of such a clause is not to reject or delimit the judicial powers of ordinary courts but to respect voluntary decisions parties make to govern how they perform their contractual obligations. It is a form of encouragement for parties to settle their disputes amicably as they had previously committed to doing so.
The Industrial Court
This court is like any court with judicial powers to hear cases. However, its role is to ‘arbitrate’ and ‘adjudicate’.
The court is composed of a Chief Judge and judge (having equal standing as a Judge of the High Court), an independent member, a representative of the employers and a representative of the employees.
On the roles it plays:
It acts as a ‘referee’ between conflicting parties on labour matters. The Industrial Court will oversee the negotiations without actively dictating what either party must do.
In arbitration, the ‘referee’ is only a witness to the process and confirms, often by signing, stamping or embossing the final decision the parties reach on their accord.
In this regard, it has powers to deal with questions of law and fact. Being an ‘overseer’ or ‘referee’ does not stop the Industrial Court from advising on points of law and fact, should they arise. Judicial officers chair the proceedings and with their legal expertise offer legal advice necessary for helping parties agree on a final decision.
Although the line between legal advice and legal adjudication is slim, given their input may influence/coerce parties to settle basing on the advice they give, judicial officers cannot do away with their profession.
They however, are strongly warned against using the Arbitration and Conciliation Act when handling these proceedings.
Decisions and Awards made by the Industrial Court
- They are binding. If parties agree, the court will only endorse the decision. If the court cannot reach a common decision, the Chief Judge is solely allowed to decide in his capacity.
- The awards are announced in the presence of all parties or their legal representatives.
- They commence on the date the court determines or a date of announcement.
- The court also has powers to determine how long the decision remains in force.
- A copy of the decision and award is given to the Minister. This is merely for record.
In our example, sexual harassment is a criminal offence under the Penal Code Act and therefore a police case to investigate. Despite the legal provisions, it is true that a victim will first report to police for help because of the nature of the offence.
Being a case of an employer harassing an employee, it is also possible, as it happened, that the victim would have reported to the Labour Officer or the Ministry in charge of Labour relations. If the Labour Officer failed to handle the woman’s matter and ploughed for a bribe, it is regrettable.
It is important to understand that employment disputes are mostly resolved through alternative dispute methods which may favour a reconciliation of both parties after the fact.
However, it is advisable to ask a lawyer for more help when faced with any dispute at work because the process may overwhelm an ordinary person trying to get justice for a wrong committed against him /her.
BY ATUHAIRWE AGRACE
This article appears in our digital law newsletter, The Deuteronomy Vol 4, Issue 4 of April 28th, 2017
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