- Background
Parliament has, for over five years, debated proposals to amend the Employment Act Cap 226. These proposed reforms are captured in the Employment (Amendment) Bill of 2022, currently awaiting Presidential assent.
The Bill aims to, among others, recognize casual and domestic workers as employees, enhance safeguards around labour migration, clarify the adjudication powers of the labour officer, and create a clear distinction between termination and dismissal procedures.
- Key Proposals for Amendment
The Key proposals for amendment to the Employment Act Cap 226 include the following;
- Recognition of Domestic and Casual worker
The Bill seeks to enhance the recognition of domestic and casual workers as employees. Specifically, it proposes that casual labourers be entitled to a contract of service upon completing 6 months of continuous service.
This measure is intended to prevent exploitation. If the bill is assented to, the casual workers would be eligible to statutory benefits including paid annual leave, sick leave and terminal benefits. This proposal has previously been rejected by the President on account that it would create obligations on the employer which were not envisaged.
- Licensing of Labour Recruitment Agencies and Protection of Migrant Workers
The Bill introduces licensing requirements for both foreign recruitment firms and local recruitment agencies. Foreign recruitment firms will be required to obtain accreditation from Uganda foreign missions before recruiting Ugandan workers for jobs abroad. For local recruitment agencies, these will be required to be licensed by the Minister of Gender, Labour and Social Development on the recommendation of the Permanent Secretary.
The Bill will, if assented to by the President, prohibit certain business operators from engaging in labour recruitment business. These include tour and travel agencies, political, religious and tribal organizations.
Further, the recruitment firms will be required to verify the suitability of the prospective employer abroad, ensure that the employee obtains a written offer, pre-departure orientation, and ensure compliance with the minimum employment standards in the employee’s contract including a clear job description, free medical emergency and repatriation of the employee upon completion of work or upon death.
These measures aim to protect migrant workers from abuse, particularly sexual harassment disguised as labour migration.
- Dismissal Versus Termination
The Bill introduces a much-needed legal distinction between dismissal and termination. In the current Employment Act Cap 226, the words “dismissal” and “termination” are used interchangeably in Sections 65, 67 and 68. It is, therefore, confusing for some employees and employers who are unable to properly characterize their end of employment procedures, most especially on the requirements for a hearing, proof of reason for ending the employment relationship as well as giving notice for ending the employment relationship under either the termination or dismissal procedures.
The Courts have previously attempted to harmonize the above provisions and stated that before dismissal occurs, verifiable misconduct or poor performance on the part of the employee must be proved and that such employee ought to be given a hearing. Termination on the other hand occurs refers to ending of employment without fault, such as through notice or redundancy. There is, however, still conflicting decisions from the Industrial Court, specifically on the requirement to give reason for termination.
The Bill proposes that a notice of termination will be sufficient to end an employment relationship. The Bill sets out the circumstances that may warrant a termination such as redundancy of the employee and sickness of the employee for more than 6 months making it impracticable for the employee to perform his or her contract.
The Bill also proposes specific grounds for dismissal including disobeying lawful instructions, abscondment for more than 1 month, use of forged documents at recruitment, conduct prejudicial to the employer’s business and other grounds that may be set out in the employment contract.
Additionally, the Bill distinguishes unfair and wrongful Dismissal. Dismissal will be considered to be wrongful where the employer does not comply with the statutory and contractual obligations. Unfair dismissal will be established where the employer has not acted in a just and equitable manner when dismissing the employee.
- Probation and Confirmation of Employee
The Bill proposes to formalize the principle that continuous service beyond 6 months results in automatic confirmation of an employee. This reflects existing precedent by the Industrial Court that probation cannot be indefinite.
- Severance Allowance
Currently, severance is only available if expressly provided as a terminal benefit under the employment contract or employment manual. The Bill seeks to make severance pay a mandatory benefit, set at 1 month salary pay for every completed year of service.
- Breast Feeding Facilities and Leave following Birth
The Bill proposes that employers be required to provide designated facilities and provide time and space for breast feeding mothers as well as grant additional parental leave. The Bill sought to extend the maternity leave from 60 to 90 days, but this was unsuccessful. The only proposal that has been maintained is to increase the paternity leave from 4 to 7 days.
- Prohibition Against Harassment
The Bill broadens the obligation to prevent workplace harassment by requiring all employers regardless of size, to adopt sexual harassment policy. The current law limits this to employers with 25 employees and more. Further, the Bill seeks to prohibit harassment, insults and intimidation at work. This amendment aims to create safer, more respectful work environments especially for women and vulnerable employees.
- Conclusion
Overall, the Employment (Amendment) Bill, 2022 introduces progressive reforms, especially regarding the protection of migrant workers, clearer employment termination standards and recognition of vulnerable categories of workers.
If passed into law, the Bill could significantly align Uganda’s labour laws with international best practices and domestic court jurisprudence.
We await the President’s assent and the gazetting of the final version to assess which provisions will be enacted into law.
Written By;
Joseph Okia
Employment & Labour Law Consultant
okiajose@yahoo.com
