The Constitutional Court has dismissed a petition challenging the constitutionality of section 67(1) and 71 (3) of the Employment Act 2006.
Section 67(1) prohibits notification and hearing before an employee’s contract under probationary employment is terminated, while Section 71 (3) prohibits an employee who is on a probationary contract from filing a complaint for unfair termination.
Lawyer Mark Kizza petitioned the Constitutional Court, contending that such provisions infringe on various provisions of the Constitution that guarantee the right to a fair hearing. However, in his lead judgment, Justice Dr Asa Mugenyi dismissed the petition, arguing that it lacked merit.
“Having carefully considered the submissions of the parties, the relevant constitutional provisions, and the applicable statutory framework, this Court finds that the petition is devoid of merit. The judge ruled that the petitioner failed to demonstrate that the impugned provisions of the Employment Act contravene the Constitution.
“When a contract expires, it reflects the will of the parties who entered into it. The parties cannot be heard to complain or request a hearing upon its expiry. This reasoning applies equally to probationary contracts, which by their nature are limited in duration and subject to non-renewal at the discretion of the employer,” the judge ruled.
Kizza’s petition followed by the decision of the Wakiso district Labour Officer to dismiss a complaint by one Ben Rhaiem, a former employee of Granada Hotel, who was dismissed from his job without a hearing. Kizza, who was his advocate, told the Court that in 2021, Rhaiem was recruited from Tunisia and employed as a cost controller on a one-year contract.
His employment commenced on May 10, 2021, and was to run for one year, subject to a six-month probation period. However, on October 28, 202l, the employment was terminated on the grounds of poor performance, without affording Rhaiem a hearing.
He filed a complaint to the Wakiso district labour office, but it was dismissed under Section 67 (1) and 71(3) of the Employment Act, which prohibited the filing of such complaints. TThat forced Kizza to file a petition in the constitutional court challenging the constitutionality of those sections.
The petition was opposed by the Attorney General. In an affidavit sworn by Wanyama Kodoli, the Principal State Attorney, he stated that probationary contracts are entered into by the parties with the understanding that it is a temporary arrangement, and that an employee is apprised before a decision to terminate or confirm employment is made.
He also argued that the sections complained about do not exclude the right to a fair hearing and are consistent with the Constitution.
In his ruling, Justice Mugenyi maintained that probationary contracts or contracts that have an expiry date do not need any justification not to renew them.
“The right to a fair hearing and or to be heard is not absolute in its application. They apply to certain, but not all, situations involving sanctions, punishments, or terminations…I am not persuaded that the right to a fair hearing or to be heard extends to all circumstances of employment termination. ” Justice Mugenyi ruled.
The Judge said the petitioner contends that probationary employees are denied these rights, but he overlooks that under the same Employment Act, employees who are summarily dismissed are likewise denied those rights. Four other Justices: Hellen Obura, Margaret Tibulya, Moses Kazibwe Kawumi, and Musa Ssekaana agreed with Mugenyi’s reasoning. URN