REMEDIES FOR WRONGFUL OR UNLAWFUL DISMISSAL OR TERMINATION.

Wrongful dismissal or termination occurs when an employee has been dismissed without
justifiable proof of their misconduct or has been terminated without following the specific
procedure either in law or the contract of service.

The remedies for unlawful or wrongful dismissal or termination therefore, are those solutions
available to an employee that he or she can acquire in order to promote fairness and enable
the aggrieved employee to acquire reliefs.

Such remedies include;

1. Damages
2. Payment of unpaid salaries
3. Reinstatement
4. Mitigation of loss
5. Pension severance pay, service pay, etc

DAMAGES

This is the monetary compensation to an aggrieved party with regard to regard to the contract.

The basic principle underlying compensatory damages is to place the aggrieved party in a
position he or she would have been had the wrong not been done.

An employee, may be granted damages for his or her unfair termination by court or a labour
officer upon proving that such claims are well founded.1

In the case of Bank of Uganda vs Betty Tinkamanyire, the employee had a clean record but
was however wrongfully dismissed on the basis of being a drunkard, late coming among
other claims.

Upon further investigations it was found out that she was exemplary as an employee and such
grounds for her dismissal were malicious and wrongful. She was therefore granted general
and punitive damages.

It must be further understood that in granting damages, the supreme court stated that there
must not be any speculation regarding the amount of compensation that an employee is
entitled to since in the case, the employee was granted compensation for things like

1
Sections 70(5)(b) & 76 of the employment act cap 226 respectively
allowances she would have received had she no been terminated for the period until her
retirement.

As this was considered to be untenable in law, the considerations for granting damages
should be in accordance with the law.2

PAYMENT OF UNPAID SALARIES

Payment of unpaid salaries is the remedy that caters for payment of such salary arrears that
were not paid to the employee because of the unlawful or wrongful dismissal or termination.

In the case of Donna kamuli v DFCU bank (2015), The claimant was unfairly terminated
from her work basing on non-performance of her duties. Such non performance was later
discovered that it was based on insufficient and inconsistent performance reports and was
therefore wrongful.

The claim was therefore allowed and therefore the claimant was entitled to severance
allowance based on a negotiated system and in absence of such a system, pay equivalent to
one month pay of the year worked.

On appeal however, the court of appeal stated that by correspondence, a hearing before
termination had been accorded to the claimant and that had such hearing not been done, the
payment of salary arrears from the date of termination to the date of the order would be
justified.

This means that in granting such an award, consideration is regarded as to whether there was
a fair hearing or not.

Payment of such wages follows the provision of the employment act Cap 226.3

Additionally, an employee is entitled to notice of the dismissal and in absence of such notice
is entitled to wages in lieu of notice as was in the case of Bank of Uganda v Betty
Tinkamanyire.

REINSTATEMENT.

This is whereby the employee is given back the job that they had lost due to unlawful or
wrongful dismissal.

2
Section 77(2) of the employment act cap226
3
Section 78
This remedy is provided for under section 70 (5)(a) of the Employment act cap 226. In most
circumstances this remedy is only granted by courts where it is practicable to do so and where
the presence of the employee at the job is not intolerable forthe employer.

In the case of Boniface Dlamini v Swaziland United Bakeries, an employee was wrongfully
terminated due to the retrenchment of workers by the employer so as to save its financial
structure.

It was later discovered that the reasons behind the termination were substantially unfair due
to an inconsistency in documents and therefore the remedy of reinstatement prayed for by the
employee was granted. This was however granted with the reason that in the circumstances, it
was no fault of the employee that therr were inconsistencies in the documents and that there
was no justification presented by the employer that the former employee's existance at the
workplace would be intolerable.

Circumstances under which reinstatement may be improbable are provided for under the
Employment act4 and these are;

1. The employee does not wish to be reinstated

MITIGATION OF LOSS

Mitigation of loss is a doctrine where a party puts in reasonable efforts to avoid further losses
incurred by the aggrieved party.

This doctrine is also known as the doctrine of avoidable consequences which prevents an
injured party from recovering damages that could have been avoided through reasonable
efforts.

Mitigation of loss as a remedy for the wrongful dismissal of an employee can be seen as a
solution provided by the employer so as to avoid further injury or loss to that employee.

This is illustrated in the case of Doreen Rugundu v International law institute where by
the respondent offered the appellant a job that was to be probationary for six months and was
to commence the next year. The respondent terminated the contract four months prior to the

4
Section 70(6)
commencement of the employment which was in accordance with section 66 of the
employment act.

The appellant sued and in mitigation, the respondent re-offered the job to the appellant but
this was rejected by the appellant who wanted compensation in damages instead.

The act of re-offering the job to the appellant was considered valid mitigation of loss in the
instant case.

PENSION, SEVERENCE PAY, EX-GRATIA BENEFITS, GRATUITY/SERVICE

Severance allowance;

This is the lump sum payment provided to an employee upon termination often based on the
length of employment.

Severance pay is given to an employee who has been in continuous service for six months 5 or
more. This is illustrated in the case of Bank of Uganda v Betty Tinkamanyire where the
employee had worked for more than 10 years and was therefore entitled to severance pay.

In the case of Alice kyebanghire & another v Uganda telecom ltd, it was found that the
employees were wrongfully dismissed and were therefore entitled to such payments as
remedies.

Failure to give this severance pay by an employer constitutes an offence under the law6.

The calculation of the severance pay is negotiable by the employer and the workers or a
labour union representing the workers if any7.

The bonus payments such as ex-gratia benefits, gratuity pay, bonus payments are calculated
along with severance payment allowances8.

Important to understand is that under the employment act, complaints regarding the
employment relationship are taken to court and those regarding infringement of rights to that
an employee is entitled to are taken to a labour officer9.

5
Section 86
6
Section 91 employment act
7
Section 88 employment act
8
Section 89 employment act
9
Section 92 employment act
LIMITATION

This is the period within which the claim for remedies should be filed. This is provided for
under the Employment act under section 70(2) that states that the claim for unfair termination
should be filed within three months from the date of dismissal.

This was the as well illustrated in the case of Jackson Oslo v Industrial security service.

Section 65(6) of the employment act as well states that the limit for the filing of a claim in
relation to notice of hearing to be given