Court upholds Cavendish lecturer’s dismissal over dual full-time employment

The Industrial court has dismissed a claim by a former Cavendish University lecturer who challenged his dismissal after the university discovered he was simultaneously holding another full-time position at Makerere University. In a ruling delivered by Justice Anthony Wabwire Musana, alongside panel members Canon Amos Lapenga, Emmanuel Bigirimana and Dr Oling Dawn Kerjew, the court held that serving two institutions in full-time capacities creates an inherent conflict that makes it impossible for an employee to devote adequate time and loyalty to both employers. “Accordingly, it is our judgment that the claimant’s dismissal was substantively fair. By maintaining concurrent full-time employment at Makerere University while bound by an express exclusivity clause, the claimant fundamentally breached his common-law duties of fidelity and good faith,” the panel ruled. The judges added: “An employee cannot act in good faith while drawing two full-time salaries, as serving two institutions concurrently creates an inherent, humanly impossible conflict of time and devotion. Neither alleged employer knowledge, customary academic practice, nor reliance on UNESCO recommendations negates this breach, as the non-competition clause strictly bound the claimant. Having objectively considered the facts, we have no hesitation in finding that it is impossible to say that the respondent was not substantively justified in dismissing the claimant.” The ruling arose from a claim filed by Dr Fredrick Kiwuwa Lugya, who in 2018 sued Cavendish University Uganda, arguing that the termination of his employment was wrongful, unlawful and unjustified because he had been denied a fair hearing. Lugya also asked the court to declare clause 12 of his employment contract, which prohibited employees from holding other full-time jobs, overly broad and an unreasonable restraint on labour. He sought more than Shs 100 million in compensation for lost earnings. Cavendish University denied the claim, arguing that Lugya had breached the terms of his contract by maintaining concurrent full-time employment at Makerere University. The university told the court it discovered Lugya was a full-time employee of Makerere University, a fact it alleged he had concealed by submitting a 2014 curriculum vitae indicating he had stopped working there in 2012. It further stated that Lugya was accorded a fair hearing during which he admitted to holding both full-time positions. In its judgment, the court noted that Lugya had expressly agreed under his contract of service to devote all his working time to Cavendish University. The agreement, effective from November 21, 2016, barred him from taking up any other full-time employment in order to preserve the trust and confidence between the parties. “The claimant knowingly bound himself to a clause that prohibited any other full-time employment. He signed this contract,” the court said. The judges rejected Lugya’s argument that his work at Makerere University did not disadvantage Cavendish. “Therefore, while the claimant felt he was not putting the respondent at a disadvantage, he was applying a very subjective view of his employment. It is not up to the employee to decide whether the employer is disadvantaged by the employee’s full-time employment elsewhere. In our estimation, that remains within the exercise of managerial prerogative.” The court added that it was impossible to conclude that Lugya could devote equal time to both institutions. “He contracted to devote himself full-time to the respondent, and, as the evidence shows, he did not. We are therefore unpersuaded that a scholar of Dr Kiwuwa Lugya’s standing did not contemplate that, having appended his hand to the non-compete provision of Clause 12 of his employment contract with the respondent, he would fundamentally breach his employment contract if he maintained dual employment.” The court also dismissed Lugya’s claim that he had been discriminated against because other academic staff allegedly held full-time jobs elsewhere but were not dismissed. The judges held that a claim of discrimination can only succeed where it is based on grounds protected under the Constitution and employment law. “We established that proving unlawful discrimination under Article 21 of the Constitution and Section 6(3) of the Employment Act (now Section 5(3)) requires demonstrating unequal treatment directly motivated by a protected attribute, such as race, sex, or origin,” the court ruled. The panel found that Lugya had failed to show that his dismissal was based on any protected characteristic. “The claimant did not make a case for discrimination on the grounds of race, colour, sex, religion, political opinion, national extraction or social origin, HIV status or disability which had the effect of impairing his treatment. We are unsatisfied that a discrimination claim was established and it hereby fails.” The court consequently dismissed the entire claim and ordered each party to bear its own legal costs. The post Court upholds Cavendish lecturer’s dismissal over dual full-time employment appeared first on The Observer Media Ltd.

Court upholds Cavendish lecturer’s dismissal over dual full-time employment

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